IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 9418 of 2018 ================================================================

PATEL SHARDABEN BALDEVBHAI & 1 other(s)

Versus DASHRATHBHAI KALIDAS PATEL & 1 other(s)

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Appearance:

MR YV BRAHMBHATT(206) for the Petitioner(s) No. 1,2 MR. JAYNEEL PARIKH, AGP, for the Respondent(s) No. 2 MR VASANTS SHAH(810) for the Respondent(s) No. 1 ===============================================================

CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE Date : 08/11/2022

ORAL ORDER

[1] This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioners against by the order dated 07.07.2017 passed by the Mamlatdar, Kalol in the proceedings initiated under Section 5(2) of the Mamlatadars’ Courts Act, (for short “the Act”), which came to be confirmed by the Deputy Collector vide order dated 08.02.2018 by which the order of the Mamlatdars’ Court was confirmed.

[2] Learned advocate Mr. Y.V.Brahmbhatt appearing for the petitioners submitted that the respondent No.1 had no right to claim a way from the land belonging to the petitioners and despite by creating a false ground of an existence of way and being used it for long time, the application has been filed before the Mamlatdars’ Courts. It is submitted that even from the pleadings made by the respondent No.1 before the Mamlatdars’ Court, ingredients for invoking Section 5 of the Act are not made out.

[2.1] Learned advocate for the petitioners took this Court to the history regarding agricultural land bearing survey No.104/new block No.118 of village Mokhasan, which is in the possession of the respondent No.1, and on the northern side of the said land, there is an agricultural land of the petitioners being survey No.105/new block No.119. Learned advocate for the petitioners submitted that the Mamlatdars’ Court has come to a erroneous finding without recording of any evidence. It is submitted that had the evidence been recorded, the petitioners would have got a chance of cross- examination of the witnesses of the respondent and therefore, the proceedings carried out by the Mamlatdar cannot be termed to be conclusive insofar as the right of way is concerned. It is further submitted that the right that is claimed by the petitioners is of the nature of civil right/easmentary right for which the Mamlatdar Court will not have any jurisdiction and therefore, proper remedy for the respondednt No.1 was to approach the Civil Court with suit for permanent injunction to assert his easmentary right. Learned advocate also submitted that the respondent No.1 has failed to make out a case that the alleged obstruction by the petitioners was within the period of six months from the date on which the suit was filed before the Mamlatdars’s Court and therefore, the application filed before the Mamlatdars’ Court ought not to have been considered on the ground of being made beyond limitation and therefore, the Mamlatdar had no jurisdiction to try the case beyond the period of prescribed limitation.

[3] Learned advocate for the respondent has opposed the grant of petition by submitting that the petitioners were aware of the usage of 15 feet way which was used by the respondent No.1 since time immemorial and the same was being used for the purpose of carrying out agricultural activity. It is submitted that the respondent No.1 was using that way for the purpose of ingress and outgress of his agriculture, equipment, cattle and the agricultural field workers. It is submitted that the issue was brought before the local body consisting of the senior people of the village and there the compromise was arrived at, wherein for the purpose of using way, a specific amount of Rs.40,000/- was paid and therefore, the petitioners cannot be permitted to back out. A reference is made to a document dated 10.05.2004 on Rs.20/- stamp paper, where the petitioners had received in installment to