ORAL JUDGMENT

[1] Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondent Nos.1 and 2. Learned advocate Mr. Mit Thakkar waives service of rule on behalf of respondent Nos.3 and 4 (4.1 to 4.3) and learned advocate Mr. D.K. Chaudhary waives service of notice on behalf of respondent Nos.6 and 7.

[2] This petition under Article 227 of the Constitution of India is filed challenging the order No.PO/JAMIN/MAM.COURT ACT/SEC.23(2)/CASE NO.4/2016 dated 12.04.2018 by the Deputy Collector and Prant Officer Gandhinagar. By the impugned order, the Deputy Collector has set aside the order dated 09.10.2015 by the Mamlatdar Court in Case No.11 of 2014. The dispute pertains to agriculture land bearing survey/Block No.94 of village Lavarpur, Taluka and District Gandhinagar, which is own and occupied by the petitioner, whereas agriculture land of Survey/Block No.92/B is co- owned on by the response No.3 and respondent No.4 (real brother of respondent No.3), whereas respondent Nos.6 and 7 are co-owners of survey/block number 107 paiki.

[3] As the petitioner had become owner and occupier of the aforesaid land by way of registered sale deed from his predecessor in title Shri Natwarbhai Ishwarbhai Patel (respondent No.5), the petitioner has right of way through the lands belonging to respondent Nos.3 to 7 for ingress and outgress alongwith the agriculture equipment like Bullock cart, tractor etc. Based on this, a Suit No.11 of 2014 was filed by the petitioner against the respondent Nos. 3 to 7 under Section 5 of the Mamtatdar Courts’

Act.

[4] Learned advocate for the petitioner submitted that the suit came to be allowed, recognizing the pathway and the right of the petitioner to utilize the same for ingress and outgress to his agriculture field. Learned advocate submitted despite the clear cut finding given on fact based upon the Panchnama carried out, the Deputy Collector set aside the order of the Mamlatdar as the private respondents challenged the same. While allowing the revision application of the respondents, the Deputy Collector/Prant Office held that the Panchnama drawn and the verification carried out was not reliable. According to learned advocate, if such exercise was found unreliable, then the matter ought to have been remanded back to the Mamlatdar for fresh round of inspection and Punchnama instead by accepting the subsequent Panchnama, which was not before the Mamlatdar and therefore, the Deputy Collector gave erroneous finding of fact.

[4.1] Learned advocate for the petitioner further submitted that the Deputy Collector considered the contention of the respondents that no cause of action arose in favour of the petitioner as the alleged action of creating impediment on the path away was not within the period of six months and therefore, the petitioner had failed to file a suit within a period of six month of such obstruction. Learned advocate has drawn attention of the Court to the various recitals in the sale deed indicating that the pathway was mentioned in such document of sale deed. Learned advocate for the petitioner submitted that for not believing the Punchnama prepared before the Mamlatdar, the Deputy Collector had relied upon an affidavit, which was produced for the first time before the Prant Officer and therefore, there was no proper verification on the basis of such affidavit filed for the first time and the petitioner did not have sufficient opportunity on this issue and therefore, the Parnt Officer ought to have remanded the matter back to the Mamlatdar.

[5] As against this, learned advocate appearing for the respondents submitted that the Prant Officer was justified in holding that the suit was not filed within the prescribe limitation of six months as no date has been mentioned in the suit/plaint itself, whereas reference is made that the alleged obstruction was prior to sometime. Learned advocate submitted that that the Prant Officer was right in relying upon the second panchnama as the sam