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CRAO/1572/0101 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 157 of 2010
=========================================
CHHITUBHAI
KALUBHAI PATEL - Applicant(s)
Versus
DAHYABHAI
MAGANBHAI PATEL & 2 - Opponent(s)
=========================================
Appearance :
MR
DHIRENDRA MEHTA for Applicant(s) : 1,
MR NV GANDHI for Opponent(s)
: 1 - 2.
None for Opponent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 13/12/2010
ORAL
ORDER
The
present revision application has been filed under sec. 115 of CPC by
the appellant-original defendant challenging the impugned order
passed in Mamlatdar Courts Revision Application No. 2/2009 by the
Deputy Collector, Bardoli Prant, Surat confirming the order passed by
the Court of Mamlatdar, Kamrej in Mamlatdar Courts Act Case No.
3/2008 dated 9.2.2009.
s. Learned
advocate Mr. Mehta referred to the documents produced as well as the
impugend orders and tried to submit that there is somemisconception
as the land rcord and other evidence has not been consdiered. He has
also referred to the map and submitted that the way which has been
claimed is not reflected in the government record and therefore both
the courts below have committed an error. Learned advocate Mr. Mehta
has also submitted that the map of the DILR does not reflect the
present right of way. He has therefore submitted that the present
revision application may be allowed.
3. Learned
advocate Mr. NV Gandhi has submitted that the scope of exercise of
discretion under sec. 115 of CPC is very limited. In support of this
submission, he has referred to and relied upon the judgment of this
Court reported in 2006(3) GLR 2031. He has also referred to and
relied upon the judgment of this court reported in 2007 JX(Guj) 205
and submitted that the Court of Mamlatdar has jurisdiction to issue
injunction granting prohibitory order.
4. He
has therefore submitted that after hearing the parties and after
making the panchnama with regard to the exact right of way the map is
prepared and it has been confirmed by both the courts below that
there is a right of way existing and therefore the present revision
application may not be entertained.
5. In
view of rival submissions, it is required to be considered whether
the present application can be entertained or not.
6. Though
the submissions have been made by learned advocate Mr. Mehta at
length referring to the papers and also the list of documents, as it
transpires from the record, the inspection was made on the spot and
the way has been found to be existing. It has been discussed in
detail in the panchnama made including even the width of the road
passing through different fields including of the present applicant.
In the circumstances, as there are two concurrent finding of fact
given by the courts below, the present revision application cannot be
entertained, particularly having regard to the limited scope of
exercise of discretion under sec.115 of CPC and the revisional
jurisdiction.
7. The
Hon’ble Apex Court in a judgment in the case of Yunis Ali (Dead) Thru
L.Rs. v. Khursheed Akram, reported in AIR 2008 SC 2607 has clearly
observed that interference with well merited concurrent findings by
High Court in revision simply because another view of evidence is
possible is not proper.
8. Therefore,
the present revision application deserves to be rejected and
accordingly stands rejected.
9. Learned
advocate Mr. Mehta has submitted that it may be clarified that this
may not be treated as giving any findings and the observations may
not be treated as final in any other proceedings. Therefore, it is
clarified that if and when any such proceeding is initiated, the same
may be considered in accordance with law and evidence.
(Rajesh
H. Shukla, J.)
(hn)
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