KANBI DEVJI VALJI v. KANBI SHAMJI SHIVJI — 1975 DIGILAW 161 (GUJ)

D. P. DESAI, J. ( 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. 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. ( 4 ) IN order to understand clearly the scope of the power of the Mamlatdar as conferred by sub-sec. (2) of sec. 5 of the Act in a case like the present it would be necessary to leave out the words which are not required for the purpose of interpretation and to reproduce only the relevant words ad has been done by the learned Single Judge also at page 609 of the Report in Mukhtyarkans case (supra ). (2 ). 5 of the Act in a case like the present it would be necessary to leave out the words which are not required for the purpose of interpretation and to reproduce only the relevant words ad has been done by the learned Single Judge also at page 609 of the Report in Mukhtyarkans case (supra ). (2 ). ( 5 ) THE said Court shall also subject to the same provisions have power within the said limits 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 in the use of roads or customary ways thereto to issue an injunction to the person causing such disturbance or obstruction requiring him to refrain from causing or attempting to cause any further such disturbance or obstruction sec. 19 of the Act lays down the statutory issues to be tried by the Mamlatdar; and so far as relevant for our purpose clauses (a) and (c) of sub. sec. (1) of sec. 19 provides as under:19 On the day fixed or on any day to which the proceedings may have been adjourned the Mamlatdar shall subject to the provisions of sec. sec. (1) of sec. 19 provides as under:19 On the day fixed or on any day to which the proceedings may have been adjourned the Mamlatdar shall subject to the provisions of sec. 16 proceed to hear all the evidence that is then and there before him and to try the following issues namely : (a) If the plaintiff avers that he has been unlawfully dispossessed of any property or deprived of any use : (1) whether the plaintiff or any person on his behalf or through whom he claims was in possession or enjoyment of the property or use claimed up to any time within six months before the suit was filed; (2) whether the defendant is in possession at the time of the suit and if so whether he obtained possession otherwise than by due course of law; (c) If the plaintiff avers that he is still in possession of the property or in the enjoyment of the use but that the defendant disturbs or obstructs or has attempted to disturb or obstruct him in his possession or use : (1) whether the plaintiff or any person in his behalf is actually in possession or enjoyment of the property or use claimed; (2) whether the defendant is disturbing or obstructing or has attempted to disturb or obstruct him in such possession or enjoyment; (3) whether such disturbance or obstruction or such attempted disturbance or obstruction first commenced within six months before the suit was filed. SUB-SEC. (4) of sec. 19 reads as under: (4) Where the Mamlatdars finding upon the issues is in favour of the plaintiff he shall make such order not being in excess of the powers vested in him by sec. 5 as the circumstances of the case appear to him to require; and where his finding is in favour of the defendant he shall dismiss the suit. In either case the costs of the suit including the costs of execution shall follow the decision. Sub-sec. (1) of sec. 5 as the circumstances of the case appear to him to require; and where his finding is in favour of the defendant he shall dismiss the suit. In either case the costs of the suit including the costs of execution shall follow the decision. Sub-sec. (1) of sec. 21 which unfortunately was not referred to before the learned Single Judge may also be reproduced in so far as it is relevant for our purpose:21 where the Mamlatdars decision is for removal of an impediment or for awarding possession or restoring a use he shall give effect thereto by issuing such orders to the village-officers or to any subordinate under his control or otherwise as he thinks fit: sub-sec. (2) of sec. 21 reads as under: 21 Where the Mamlatdars decision is for granting an injunction he shall cause the same to be prepared in the form of Schedule BB or C as the case may be and shall deliver or tender the shall then and there to the defendant if present or if the defendant is not present shall send it to the village-officers or to any subordinate under his control to be served upon the defendant. Sec. 22 of the Act is also relevant for our purpose: and it reads in so for as material. as under:. 22 Subject to the provisions of sec. 23 sub-sec. (2) the party in favour of whom the Mamlatdar issues an order for removal of an impediment or the party to whom the Mamlatdar gives possession or restores a use or in whose favour an injunction is granted shall continue to have the surface water upon his land flow unimpeded on to adjacent land or continue in possession or use as the case may be until otherwise decided or ordered or until ousted by a competent Civil Court. 5 The scope for the conclusion arrived at by the learned Single Judge arose on account of the terminology expressed in sec. 5 (1) with regard to the natural flow of surface water and possession of lands or use of water from any well as distinguished from the terminology used in sec. 5 (3) regarding the use of roads or customary ways inter alia to agricultural lands. It is not disputed that sub-sec. (1) of sec. 5 (1) with regard to the natural flow of surface water and possession of lands or use of water from any well as distinguished from the terminology used in sec. 5 (3) regarding the use of roads or customary ways inter alia to agricultural lands. It is not disputed that sub-sec. (1) of sec. 5 does not apply to the facts of the present case because the suit is not for removal of any impediment to the natural flow of water nor is it for possession of any land or for restoration of the use of water from any well as contemplated by sec. 5 (1 ). The suit is to abate an obstruction created in the use of a road or customary way to the agricultural land falling within sec. 5 (2) of the Act. When we come to the statutory issues contemplated by sec. 19 we find distinct issues provided for the distinct categories of cases contemplated by sec. 5 (1) and (2 ). Thus sec. 19 (1) (aa) prescribes issues in a case where natural flow of surface water has been impeded by any erection raised by the defendant; and one of the issues is whether the defendant erected any such impediment ? The statutory issue with regard to clause (b) of sec. 5 (1) relating to possession of any lands or premises used for agriculture etc. inter alia provides for proof of the fact that the defendant obtained possession otherwise than by due course of law. Simi- larly with regard to restoration of any use as contemplated by sec. 5 the relevant issue provides for the proof of enjoyment of the use. With regard to the obstruction in the use of road or customary way as contemplated by sec. 5 (2) the statutory issue as contained in sec. 19 (1) (c) as reproduced above contemplates proof of the fact that the plaintiff is still in possession or enjoyment of the property or use and the defendant has disturbed or obstructed him in possession or use thereof. In that case one of the statutory issues is whether the plaintiff is actually in possession or enjoyment of the property or use claimed. ( 6 ) IN Mamlatdars Courts Act 1876 (Bombay Act 11 of 1876) sec 4 corresponded to sec. 5 of the present Act and sec. 15 which corresponded to sec. In that case one of the statutory issues is whether the plaintiff is actually in possession or enjoyment of the property or use claimed. ( 6 ) IN Mamlatdars Courts Act 1876 (Bombay Act 11 of 1876) sec 4 corresponded to sec. 5 of the present Act and sec. 15 which corresponded to sec. 19 of the present Act provided for the statutory issues. A matter arising under the old Act came up before a Division Bench of the Bombay High Court in NANABHAI SADANAND V. DWARKADAS DHARAMSI AND ANOTHER 3 BOMBAY LAW REPORTER PAGE 681 wherein the plaintiff had claimed a right of way over a road to his property; and the defendant had obstructed in the enjoyment of that right by erecting a hedge across the road. In that case the Mamlatdar framed issues under sec. 15 (c) of the old Act (corresponding to sec. 19 (c) of the present Act.) The plaintiff contended in that suit that he was in possession or enjoyment of the use of the road in dispute and therefore appropriate issues should be framed not under sec. . 15 (c) but under sec. 15 (b) of the old Act. This application wa rejected by the Mamlatdar. Then the Mamlatdar without going into evidence also rejected plaintiffs claim holding that under sec. 4 (1) the Court had no power to restore the use of a road and it can only grant an injunction under clause (2) of that section in respect of the use of a road. He held that the plaintiff was not entitled to claim the relief by way of injunction because he was not in possession of the use at the time of the suit. The matter went in revision to the High Court; and Chandavarkar J speaking for the Division Bench stated with reference to the plaintiffs allegation as under:we take that allegation to mean no more than that it was that obstruction which prevented his use of the road But that does not imply an admission on his part that he was not in actual enjoyment of the use claimed. Sec. 15 must be read subject to sec. 4 which is the section which gives jurisdiction to the Mamlatdar :-A person is in the enjoyment is a use within the first issue when but for the obstruction he com- plains of he would be in use. Sec. 15 must be read subject to sec. 4 which is the section which gives jurisdiction to the Mamlatdar :-A person is in the enjoyment is a use within the first issue when but for the obstruction he com- plains of he would be in use. That is the only-reasonable interpretation of Clause (c) of sec. 15 having regard to the fact that the enjoyment of the user mentioned in the first issue prescribed by it does not refer to any enjoyment on the date of the suit. (Emphasis Supplied)IN Bhau Mangeshs case (8 Bom. L. R. 312) another case arising under the old Act the plaintiff claimed way from his bungalow through the land of the defendant to approach another land of the plaintiff by the side of the defendants land. Plaintiffs way to his land was obstructed by raising cactus hedge and a shed. The plaintiff therefore approached the Mamlatdar under the old Act praying that the Court may order the defendant to remove the said cactus hedge and the shed and make the plaintiffs passage clear. This application came to b rejected by the Mamlatdar observing that it is only by injunction to the person causing obstruction in the use of a road that the Mamlatdar can give relief and no such relief was sought by the plaintiff who in view of the only issue to be tried under sec. 15 (a) of the old Act can claim relief only if he is unlawfully dispossessed of any property such as lands premises etc. or if he was deprived of the use only of such thing as water from wells etc. The matter went in revision to the High Court. Russell J. referred to the provisions of sec. 15 (a)of the old Act and stated as under at page 321 now what do we find when we look at sec. 15 ? see. 15 says On the day appointed the Mamlatdar shall proceed to hear all the evidence that is then and there before him and to try the following issues viz:- (A) If the plaintiff avers that he has been unlawfully dispossessed of any property or deprived of any use: (1) Whether the plaintiff or any person on his behalf or through whom he claims was in possession or enjoyment of the property or use claimed upto any time within six months before the suit was filed. (2) Whether the defendant is in possession at the time of the suit and if so whether he obtained possession otherwise than by due course of law. Now the words there used are deprived of any use. It does not say any use such as is mentioned in the first paragraph of sec. 4 of the Act but any use which I apprehend must be taken to mean any use of roads or customary ways as well as any use of water from any wells etc. Now what the plaintiff here alleges is that he has been obstructed in the use of this road to such an extent that he has been wholly deprived of the use thereof; and it is impossible to suppose that the second clause of sec. 4 of the Act was intended to refer only to cases of partial obstruction when a person was wholly prevented from using the road. Then the last paragraph of sec. 16 is material. If the Mamlatdars finding upon these issues be in favour of the plaintiff he shall make such order as the circumstances of the case shall appear to him to require provided that the same be not in excess of the powers vested in him by sec 4 of this Act. He is given an entirely free hand with regard to the remedy that he is to give. Therefore the remedy in this particular suit will not be only the restoration of the use of the ways but he may grant an injunction also and this is clearly seen when one sees the form of injunction which is Form C. It seems to me therefore that the Mamlatdar was wrong in holding that he had no jurisdiction to try this case and in my opinion the rule must be made absolute and I think with costs. (Emphasis supplied ). Now it may be mentioned that provisions of sec. 15 (a) reproduced in the aforesaid observations are in pari materia with sec. 19 (1) (a) of the present Act and the provisions of the last paragraph of sec. 15 are in pari materia with sub-sec. (4) of sec. 19 of the present Act. (Emphasis supplied ). Now it may be mentioned that provisions of sec. 15 (a) reproduced in the aforesaid observations are in pari materia with sec. 19 (1) (a) of the present Act and the provisions of the last paragraph of sec. 15 are in pari materia with sub-sec. (4) of sec. 19 of the present Act. Aston J. who was the other learned Judge of the Division Bench in the aforesaid case also decided the case on the footing that the plaintiffs case was that the defendant had unlawfully deprived him of the use of customary way to fields; and the statutory issues under sec. 15 (a) arose. He observed as under at page 322:as the Mamlatdar has jurisdiction under sec. 4 to grant an injunction in case of obstruction or disturbance to the use of roads or customary ways to fields and a deprivation of an use is a disturbance the Mamlatdar is in error in supposing that the terms in which the statutory issues are framed for a case where the plaintiff does not aver deprivation of an use deprive the Mamlatdar of the jurisdiction to try issues (a) and give such relief as he has jurisdiction to give under the second paragraph of sec. 4. It would be seen from the aforesaid decision of the Division Bench in Bhau Mangeshs case (supra) that sec 15 (1) (a) of the earlier Act was in the same terms as sec. 19 (1) (a) of the present Act and the High Court interpreted the words any use occurring in the said clause (a) of sec. 15 as not necessarily restricted to the first para of sec. 4 of the old Act but also including any use of roads or customary ways as well as any use of water from any well. Therefore in case of deprivation of the use of any road or customary way the Mamlatdar on finding upon relevant statutory issues in favour of the plaintiff can make such order as the circumstances of the case appear to him to require provided that the order should not be in excess of the powers conferred upon him by sec. 5. Sub-sec. (4) of sec. 19 in terms provides for power to make such order not being in excess of the powers vested in him by sec. 5 as the circumstances of the case appear to him to require. 5. Sub-sec. (4) of sec. 19 in terms provides for power to make such order not being in excess of the powers vested in him by sec. 5 as the circumstances of the case appear to him to require. This provision is in pari materia with the last clause of sec. 15 of the old Act. ( 7 ) WE have no reason why we should not interprete the relevant provisions of the present Act in the same manner as was done by the Division Bench in Bhau Mangeshs case (Supra ). Therefore in a case where there is complete obstruction to a road or customary way the obstruction would in law amount to deprivation of the use of the road or way and with regard to such deprivation of the use of road or way the appropriate order including removal of the obstruction can be passed by the Mamlatdar as contemplated by sub-sec. (4) of sec. 19 of the Act. Sec. 21 (1) of the Act provides for giving effect to the decision of the Mamlatdar restoring use by issuing such order to the village officer or to any subordinate under his control or otherwise as the Mamlatdar thinks fit. This enabling provision in sub-sec. (1) of sec. 21 need not necessarily he confined to the cases contemplated by sec. 5 (1) only. The terms in which sec 19 (4) and sec 21 (1) are enacted are quite wide and would cover on the basis of the reasoning given in Bhau Mangeshs case (supra) the full deprivation of the use of a road by creating an obstruction making the road impassable. ( 8 ) UNFORTUNATELY the decision in Bhau Mangeshs case (supra) was not brought to the notice of the learned Single Judge in which case the provisions in pari materia with the relevant provisions mentioned above were interpreted in the context of deprivation of the use of road by raising of a cactus hedge and a shed. The Division Bench in terms stated that the remedy in that suit was not only the restoration of the use of the way but also an injunction. On a correct interpretation of sec. 5 (2) read with sec. 19 (4) of the Act we hold that the Mamlatdar acting under sec. The Division Bench in terms stated that the remedy in that suit was not only the restoration of the use of the way but also an injunction. On a correct interpretation of sec. 5 (2) read with sec. 19 (4) of the Act we hold that the Mamlatdar acting under sec. 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 sec. 5 (2) of the Act. This view gets support from the interpretation of similar provisions of the earlier Act of 1876 by the Division Bench of Bombay High Court in the aforesaid cases. Therefore the view taken by the learned Single Judge in Mukhtyarkhans case (supra) is speaking with respect not correct. ( 9 ) THE second contention raised on behalf of the petitioner was that the Mamlatdar had no jurisdiction to pass any order in this case because his jurisdiction under sec. 5 (2) was limited to the use of roads or custo- mary way only and that in the present case there was no averment that the way claimed by the plaintiff was a road or a customary way. This contention it is admitted was not raised before the Mamlatdar. It was sought to be raised before the Deputy Collector who negatived it. It appears from the order of the Mamlatdar that the plaintiff has described this way as vat and has also stated that the said way had continued till the present day and since times immemorial. It is difficult therefore to agree at this stage while dealing with a revisional application under sec. 115 of the Code of Civil Procedure with the interpretation sought to be placed by Mr. Nanavati on this averment as one not disclosing a custo- mary way. This contention of Mr. Nanavati must also fail. ( 10 ) IN the result the application must fail; and stands dismissed Rule discharged with costs. Interim relief will stand vacated. Application dismissed. .