CRA/509/1990 of CHHAGANBHAI HARJIVANBHAI PRAJAPATI Vs . on 24 December 1998

1. Whether Reporters of Local Papers may be allowed to see the judgements?

2. To be referred to the Reporter or not?

3. Whether Their Lordships wish to see the fair copy of the judgement?

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?

5. Whether it is to be circulated to the Civil Judge?

-------------------------------------------------------------- CHHAGANBHAI HARJIVANBHAI PRAJAPATIVersus MOHANBHAI RAMUBHAI PATEL -------------------------------------------------------------- Appearance: MR BA SURTI for Petitioners None present for Respondents -------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 24/12/98

ORAL JUDGEMENT

#. The matter was called out for hearing in the first round, then in the second round and lastly in the third round, but none put appearance on behalf of the respondents. #. Heard the learned counsel for the petitioners and perused the order of the Mamlatdar, Hansot, dated #. On 19th July 1991, this matter has come up for admission before this Court, on which date, to ascertain whether the respondent No.1 has any alternative passage or not, notice has been issued. By way of interim relief, status-quo was ordered to be continued. Nobody put appearance for the respondent in response to the notice aforesaid of this Court. On 10.9.91, the civil revision application has been admitted and interim relief granted earlier was ordered to continue till further orders. After notice of rule nobody has put appearance for the respondent.

#. The learned counsel for the petitioner contended that the Mamlatdar has given a categorical finding after appreciating evidence of the parties that the respondent No.1 has another road of crossing canal which is being used by him to come to his field for cultivation. Not only this, the Mamlatdar has held that his own witness Shri Jayrambhai Gumanbhai Aher has also admitted the existence of alternate way available to respondent No.1. It has next been contended that the Deputy Collector, sitting in the appeal has not reversed this finding of fact but solely on the basis of recital in the Sale Deed of Survey No.431, the matter has been decided.

#. I have given my thoughtful considerations to the submissions made by learned counsel for the parties.

#. From the judgment of the Mamlatdar, Hansot, I find that he has recorded a categorical finding of fact on appreciation of evidence of the parties that the respondent No.1 has alternate way available for going to his fields for cultivation. The plaintiff-respondent No.1 in his testimony has clearly stated that apart from the road for which he has claimed the right of way in the plaint, there is also another road by crossing canal. Not only this, he has further stated that he is using that road for going to his field for cultivation. The matter is not ended here, but his witness, Shri Jayrambai Gumanbhai Ahir has also made a categorical admission that the plaintiff-respondent has alternate way available for going to his field. The Deputy Collector, no doubt was sitting in the revision and he may have not that much of restricted power of judicial review as what this court has under Section 115 of the C.P.C. It has powers to reappreciate evidence and reach to its own conclusion on the facts, but in this case, from the judgment of the Deputy Collector, I find that he has given any reason why the statement made by the plaintiff and his witness in which they categorically admitted of availability of alternate way should not be relied. It was duty of the Deputy Collector as appellate authority where he is not relying on those statements of plaintiff and witness, it has to record its own reasons. Not only this, where it disagrees with the finding of fact recorded by earlier authority, it has to give its reasons for disagreement, which has also not precisely been done.

#. In the judgment dated 14th September 1987, the

Mamlatdar has also referred to the recital in the Sale Deed of Survey No.431 in favour of plaintiff-respondent No.1. Be that as it may, even if it is taken that there is recital in the Sale Deed of right of way through disputed survey numbers, when the alternate way is available and in these facts the Mamlatdar has not accepted the right of the plaintiff-respondent, merely on this recital in the Sale Deed aforesaid, the Deputy Collector should not have interfered with the finding of fact recorded by the lower authority. Much emphasis has been laid no doubt, on the document, registered Sale Deed of land of Survey No.431, but when the alternate way was available to the plaintiff-respondent, no reason has been given why these customary rights are to be recognized to the extent where the result would have been of litigation after litigation between the parties. In the dispute of this nature, where the authority is dealing with such disputed right of way, the authority should be slow to recognize the customary right of way passing through the fields of opposite site. This approach is also the need of time and in the larger interest of the parties. The approach of the authority should have been to see that as far as possible, without causing any injustice to the either party to the litigation where the other way is available, the disputed way may not have been given recognition. That approach results in ultimately settling of disputes once for all and as a result thereof, minimizing litigation before Courts and authorities, either of criminal, civil or revenue. It is a case where the Deputy Collector has clearly committed a material irregularity in exercise of its jurisdiction in passing of the impugned order and this case clearly falls under clause (c) of sub-section 1 of Section 115 of the C.P.C. Not only this, in case this order of the Deputy Collector is allowed to stand, it will occasion failure of justice to the petitioner as on the basis of this order, the respondent-plaintiff shall unnecssarily create manifold difficulties, inconvenience and disputes and may result in possible filing of further criminal, civil or revenue disputes. It is also a case where in case this order is allowed to stand, it will cause injury to the petitioners.

#. In the result, this civil revision application succeeds and the same is allowed. The order of the Deputy Collector, Bharuch, passed in Revision Application No.62/88 dated 20th June 1989, is quashed and set aside. Rule is made absolute. No order as to costs.

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