JUDGMENT :

1. Rule. Learned advocate Ms. Vashi waives service of notice of rule for and on behalf of the respondent Nos.1, 2 and 4. The writ petition is decided finally today.

2. The present writ petition has been filed seeking quashing and setting aside of the order dated 21.03.2022 passed by the Prant Officer, Kheralu, Dist.Mehsana in Revision Application No.1 of 2021 and 23.09.2021 passed by the Mamlatdar, Kheralu, Dist. Mehsana in Suit Case No.1 of 2021, whereby the application of the petitioner has been rejected seeking removal of the wall constructed by the private respondents.

3. It is the case of the petitioner that the private respondents have constructed a wall, which has restricted ingress and egress from the plot or house of the petitioner to his agricultural fields. Accordingly, the petitioner filed an application dated 25.01.2021 (Annexure-I) before the Executive Magistrate being Suit Case No.1 of 2021 seeking declaration against the private respondents to demolish the wall constructed in the path of the land bearing Survey No.973, which belongs to him. By the impugned order dated 23.09.2021, the application-suit of the petitioner was rejected by the Mamlatdar by observing that there is no cause of action specified in the suit since no date with regard to such construction of wall has been specified in the suit. Being aggrieved, the petitioner challenged the same by way of a revision application before the Prant Officer, Kheralu, which was also rejected by the impugned order dated 21.03.2022 and it was observed that the petitioner can seek remedy by instituting a civil suit.

SUBMISSIONS:

4. Learned advocate Mr. Chaudhary appearing for the petitioner has submitted that both the impugned orders are required to be quashed and set aside since the petitioner is restricted from using his agricultural land by constructing a wall by the respondents in the land bearing Survey No.973. It is submitted that initially, the land bearing old Survey No.383/1 (new Survey No.973) belonged to the private respondents, including father of the petitioner however, thereafter it was sold behind the back of the petitioner by them. It is submitted that for all these years in fact, one Shamalbhai Fuljibhai Chaudhary, who became the owner and occupier of the land bearing old Survey No.383(new Survey No.972) allowed him to use a way however, since he refused to do so, the petitioner instituted a suit against the respondents with a prayer to demolish the said wall and allow to use his agricultural field from way of the land bearing Survey No.973.

4.1 Learned advocate Mr. Chaudhary has placed reliance on the judgement of this Court in the case of Vallabhbhai Vastabhai Kukadiya Vs. Deputy Collector, Botad, 2022 (2) GLH 469 and has submitted that the Mamlatdar was required to verify all the aspects and by appreciating the subjective satisfaction of the evidence, the application of the petitioner was required to be decided however, the same has been rejected and further, in the revision application, the revisional authority has also fallen in error by confirming the said order.

5. Per contra, learned senior advocate Mr. Unwala has submitted that the impugned orders do not require any interference since initially, the suit, which has been instituted before the Mamlatdar, itself is barred by the limitation as provided under sub-section (3) of Section 5 of the Mamlatdars’ Courts Act, 1906 (for short “the Act”). It is further submitted that in fact, the cause of action has arisen when one Shamdaji Fuljibhai Becharbhai has refused the access of way to the fields of the petitioner and instead of instituting the suit against him, the petitioner has sought to embroil the private respondents in the proceedings. He has further submitted that the petitioner can redress his grievances by instituting a civil suit before the Civil Court so that appropriate evidence with regard to the ownership of the land in question can be examined. Thus, it is submitted that the wr