SCA/2340/1989 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2340 of 1989 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PRAJAPATI BHIKHABHAI K - Petitioner(s) Versus PATEL BHIKHABHAI N & 1 - Respondent(s) ========================================================= Appearance : MR RN SHAH for Petitioner(s) : 1 - 12, 12.2.1, 12.2.2,12.2.3 MR AD DESAI for Respondent(s) : 1 - 2,5 - 8. DELETED for Respondent(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 10/01/2008 ORAL JUDGMENT At the outset, it is required to be noted that, today, when the matter is taken up for hearing, Shri RN Shah, advocate for petitioners and Shri AD Desai, advocate for respondents have jointly SCA/2340/1989 2/7 JUDGMENT submitted that compromise between the parties has been arrived at and upon such compromise the dispute between the parties and grievances are settled and they do not survive. They also jointly submitted that consequently the dispute and contentions raised in the petition also does not survive. On such joint representation and request, both counsel have prayed that the petition may be accordingly disposed of. While making the said request, a copy of judgment and order dated 16.9.1987 passed by Assistant Judge, Sabarkantha, Himatnagar, below Exh. 18 in C.A.F.O. No. 44/86 is also placed on record. 2. However, so as to dispose of the petition in light of the aforesaid joint request of both the sides, it is necessary to refer to some relevant facts. 2.1. The controversy between the parties started when present respondents No. 1 to 8 filed an application dated 20.4.1983 before the Talati to mutate an Entry with regard to Survey No. 22/Paiki admeasuring about 4 gunthas and Survey No. 52 admeasuring about 3 gunthas with respect to Kuva's Kharabha and Havada respectively. In view of the said application, Entry No. 497 was mutated. SCA/2340/1989 3/7 JUDGMENT 2.2. The petitioners herein were aggrieved by the said action and they disputed the said Entry on diverse grounds, including that of ownership. In view of their objections, the Entry was put in the Dispute Register as a disputed Entry. 2.3. In view of the said dispute, the controversy was taken up for redressal by Deputy Mamlatdar who passed an order dated 24.6.1983 cancelling the said Entry and directing to show right of the village people to fetch water. He also directed to mutate the rights of village people only to the extent of drawing water and not beyond that. 2.4. The respondents herein felt aggrieved by the said order dated 24.6.83 and preferred appeal before Deputy Collector who passed order and dismissed the said appeal. Consequently, order dated 24.6.83 came to be confirmed. The respondents were not satisfied with the said order dated 19.6.1984 and that therefore they preferred Revision Application No. RTS 14/84 before the Collector. The Collector in his order dated 28.8.1986, while rejecting the revision application, recorded that the concerned opponents, i.e., the petitioners herein were allowing the village people to draw water from the Well and the Havada and no evidence to establish the ownership of the Well or Havada in dispute was produced and that therefore there was no justification in entertaining the revision application. SCA/2340/1989 4/7 JUDGMENT 2.5. The respondents herein felt aggrieved by the said order also and consequently they preferred another Revision Application No. SRD/353/86 before the Special Secretary, Revenue Department. The said authority passed an order dated 29.8.88 whereby he partly allowed the revision application and also directed the Collector to fix the price with regard to the land and to put the matter before the Government to dispose of the land consisting of Well and Havada and also directed to examine the dispute concerning the heirs of Ramshankar Govindbhai Dave and to also determine how the present occupants got into possession. 3. The petitioners felt aggrieved by the said order and approached this Court against the said order dated 29.8.1988 inter alia on the ground that the Deputy Secretary exercised jurisdiction not vested in it while directing the Collector to make a proposal to the Government to fix the price of the land and in doing so the said authority ignored the fact that in a proceeding under Rule 108(6) of the Code, it had no jurisdiction to pass such order except to mutate the Entry on the basis of evidence on record. 4. From perusal of the judgment and order dated 16.9.1987 passed by the Assistant Judge, S.K., Himmatnagar in CAFO No. 44/86 SCA/2340/1989 5/7 JUDGMENT below Exh.16, it transpires that present petitioners had preferred civil suit being Civil Suit No. 177/84 wherein an application for interim injunction was also made. It also transpires that, by an order dated 30.9.1986 passed below Exh.5, learned Civil Court had vacated the ad- interim injunction granted in favour of the plaintiffs, i.e., present petitioners. It was against the said order that the aforesaid CAFO No. 44/86 was preferred by the present petitioners and in the said proceedings the abovereferred order dated 16.9.1987 came to be passed. 5. Since by way of their submissions the learned advocates have jointly placed reliance on the said order and have submitted that a compromise has been arrived at between the parties on the lines of the said order, it is appropriate to reproduce hereinbelow the operative portion, i.e., order, of the said judgment dated 16.9.87 in CAFO No. 44/86. The said order reads as follows; “This Misc. Appeal is allowed. The order dated 30/9/1983 passed by the learned Civil Judge (J.D.) Modasa below Ex.5 in a Civil Suit No. 177/84 is set aside. The defendant-respondent no.1 is hereby restrained from fetching water with the use of electric motor or engine or by any other means from the well situated in block no.22 and defendant-respondent no.2 is also restrained from giving electric supply on the said well pending the suit. It is hereby clarified that village SCA/2340/1989 6/7 JUDGMENT people of Rahiyol are not restrained from fetching water for the use of their cattle from the suit well by the ordinary means, which can be operated without the electric supply or engine.” The copy of the judgment and order dated 16.9.1987 is taken on record and is made part of the record of the present petition. 6. As can be seen from the aforesaid directions, the Court has directed that the defendants are restrained from fetching water with the use of electric motor or engine from the Well situate in Block No. 22, but they are not restrained from fetching water for their use from the situated Well by ordinary means. 7. In light of the submissions and joint requests made by advocates of both parties and in view of the consensus and settlement said to have been arrived at by and between the contesting parties, the subject petition is partly allowed by directing the parties to abide by the order dated 21.8.86 passed by the Collector in Revision Application No. RTS.14/84 as well as the order dated 24.6.83 passed by the Mamlatdar read with the above referred order dtd. 16.9.87 in CAFO No. 44/86. The record will show the relevant entries as per the directions given by the Mamlatdar in order dated 24.6.83 and it would be subject to the final outcome of the suit. The residents of the village shall have the right to draw water from the Well and Havada and though they have SCA/2340/1989 7/7 JUDGMENT been restrained, by the learned Civil Court, from using motor or other electrical appliances for drawing water, Mr. RN Shah, advocate for petitioners has fairly stated that the petitioners do not have any objection if the respondents use motor or engine or other electrical appliances for drawing water. 8. In light of the consensus and settlement said to have been arrived at between the parties and as per the joint request made by Mr. RN Shah, advocate for the petitioners and Mr. AD Desai, advocate for the respondents, the petition is partly allowed. With the aforesaid clarifications, Rule is made absolute to the aforesaid extent. No order as to costs. [ K.M. Thaker, J. ] rmr.