SCA/24543/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24543 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= SINDHI ABUDLBHAI MAHAMMADBHAI & 3 - Petitioner(s) Versus BAI HAVABEN WD/O SINDHI FAKIR MAHAMMADBHAI NASHUMIYA & 3 - Respondent(s) ========================================================= Appearance : MR PRANAV G DESAI for Petitioner(s) : 1 - 4. MR PRAKASH K JANI for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 25/08/2008 ORAL JUDGMENT 1. Rule. Shri P.K. Jani, learned advocate waives service of rule on behalf of the respondents. With SCA/24543/2007 2/7 JUDGMENT the consent of the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners-original plaintiffs have prayed for an appropriate writ, direction and / or order quashing and setting aside the judgment and order dated 10.7.20078 passed by the learned Additional District Judge and Presiding Officer, 3rd Fast Track Court, Mehsana passed in Miscellaneous Appeal No. 16 of 2007 to restore the order passed by the learned Principal Civil Judge, Kheralu below Exh. 5 dated 19.1.2007 passed in Regular Civil Suit No. 25 of 2004. 3. At the outset, Shri P.G. Desai, learned advocate appearing for the petitioners has fairly conceded that prayer of the petitioners-original plaintiffs in the suit to quash and set aside the order passed by the Mamlatdar in Case No. 1 of 2003 under Mamlatdar Courts Act is not sustainable and has submitted that the order passed by the Mamlatdar in the aforesaid Case would be implemented, which was with respect to SCA/24543/2007 3/7 JUDGMENT the right of way of the defendants to their survey No. 5 from survey No. 2 & 3. Shir P.G. Desai, learned advocate appearing for the petitioners has submitted that both the Courts below have materially erred in not properly appreciating the real controversy in the suit. It is submitted that real controversy in the suit filed by the petitioners-plaintiffs in Regular Civil Suit No. 25 of 2004 was with respect to right of way of the petitioners to their agriculture field bearing survey No. 15 from survey No. 5 of the defendants which was already there and which is very much clear from the panchnama prepared by the Court Commissioner. However, none of the Courts below have given any specific finding with respect to the right of way of the petitioners-plaintiffs from survey No. 5 belonging to the defendants to their field bearing survey No. 15. 4.Shri P.K. Jani, learned advocate for the respondents has vehemently submitted that as the order passed by the learned trial Court was erroneous and no specific finding was given, the same is rightly interfered with by the learned Appellate SCA/24543/2007 4/7 JUDGMENT Court. It is also further submitted by him that even the main submissions were made on behalf of the petitioners-plaintiffs with respect to the order passed by the Mamlatdar under the Mamlatdar Courts Act and no specific contention was raised and / or submissions were made with respect to their right of way to their agriculture field bearing survey No. 15 passing through survey No. 5 belonging to the defendants and, therefore, it is submitted that the order passed by the Appellate Court is not required to be interfered with. 4. Having heard the learned advocates for the respective parties and having gone through the orders passed by both the Courts below, the prayer in the suit and the averments in the plaint, it appears that controversy was also raised with respect to the orders passed by the Mamlatdar in Case No. 1 of 2003 under the Mamlatdar Courts Act. The other dispute was with respect to right of way of the plaintiffs to their agriculture field bearing survey No. 15 through survey No. 5 belonging to the defendants and for that purpose Court Commissioner was appointed to prepare SCA/24543/2007 5/7 JUDGMENT panchnama and the panchnama is placed on record. It appears from the order passed by the learned trial Court that there were submissions made with respect to the way/ Nalia to survey No. 15 belonging to the plaintiffs through survey No. 5 belonging to the defendants and there is a reference to the Court Commissioner report. However, neither the learned trial Court nor the learned Appellate Court has given any specific finding with respect to the road / Nalia to survey No. 15 through survey No. 5 and there is no specific finding with respect to whether prima facie there was a road proceedings towards survey No. 15 and / or right of way of the plaintiffs to their agriculture field bearing survey No. 15. Under the circumstance, it appears to this Court that the matter be remanded to the learned trial Court for deciding application at Exh. 5 afresh, considering the panchnama prepared by the Court Commissioner and considering the controversy involved in the suit with respect to right of way of the plaintiffs to their agriculture filed through survey No. 15. 7. For the reasons stated above, petition succeeds. SCA/24543/2007 6/7 JUDGMENT The impugned order passed by the learned Principal Civil Jduge, Kheralu dated 19.1.2007 passed below Exh. 5 in Regular Civil Suit No. 25 of 2004 as well as the judgment and order dated 10.7.20078 passed by the learned Additional District Judge and Presiding Officer, 3rd Fast Track Court, Mehsana passed in Miscellaneous Appeal No. 16 of 2007 are hereby quashed and set aside and the matter is remanded to the learned trial Court for deciding the application at Exh.5 afresh in accordance with law and on merits without in any way being influenced by the present order and in light of the observations made herein above and the said exercise will be completed within a period of three months from the date of the receipt of the present order and / or on production of the certified copy of the present order. It is made clear that this Court has not expressed any opinion on merits in favour of either parties. It is also directed to the learned trial Court to decide and dispose of the Exh. 5 application in accordance with law and on merits, considering the submissions and evidence on record inclusive of panchnama prepared by the Court Commissioner. Until then parties are SCA/24543/2007 7/7 JUDGMENT directed to maintain status quo as on today. Rule is made absolute. In the facts and circumstance of the case, there shall be no order as to cost. (M.R. Shah, J.) Kaushik