D.P. Desai, J.
1. This revisional application, which arises from an order passed by the Mamlatdar of Bhuj, exercising powers under the Mamlatdars' Courts Act, 1906 (hereafter referred to as 'the Act'), and confirmed in revision by the Deputy Collector, Bhuj, has been referred to this Division Bench by the learned Single Judge, because the learned Judge found conflict between a decision of the Bombay High Court reported as Bhau Mangesh Wagle v. Ahmedbhoy Habibbhoy 8 Bombay Law Reporter, 312 and the decision of a learned Single Judge of this High Court reported as Mukhatyarkhan Ajamkhan v. Usmankhan 14 Gujarat Law Reporter, 607. The dispute referred centres round the question whether in exercising the powers under Section 5(2) of the Act, the Mamlatdar can order removal of the obstruction complained of by the plaintiff before him For this purpose relevant facts may be stated.
2. The petitioner in this revisional application is the original defendant against whom proceedings under the Act were taken before the Mamlatdar by the present opponent as plaintiff, complaining of obstruction on April 2, 1967 in plaintiff's way through defendant's; land for going to plaintiff's field. The land concerned in this case is Survey No. 7 of which northern portion belonged to the defendant and southern portion belonged to the plaintiff. The plaintiff's case is that since ancient times, there is in existence a way for approaching his southern portion from the western Shedha of the northern portion belonging to the defendant; and that for the first time an obstruction was made by the defendant in plaintiff's user of the said way. Complaining of this obstruction, the plaintiff filed a suit under Section 5 of the Act on June, 13, 1967 before the Mamlatdar. The learned Mamlatdar, after framing statutory issues and deciding them in plaintiff's favour held the way alleged by the plaintiff proved and directed that the obstruction caused in the use of this way should be removed and the way should be made open. He further directed that the defendant should not obstruct the plaintiff in passing to and fro along this way from plaintiff's field. This decision was given by the Mamlatdar on May 30, 1973. The defendant preferred a revisional application against this decision, being application No. 6 of 1973 to the Deputy Collector. The learned Deputy Collector, by his order dated April 20, 1974 dismissed the revisional application and confirmed the aforesaid order of the Mamlatdar. Being aggrieved by this order in revision passed by the Deputy Collector, original defendant approached this Court in revision under Section 115 of the Code of Civil Procedure.
3. The question, as aforesaid, is whether the Mamlatdar had jurisdiction or power to order removal of the obstruction in the present case? In Mukhtyarkhan's case (supra), the learned Single Judge came to the conclusion that the Mamlatdar had no jurisdiction to issue any order directing removal of the obstruction or an order causing the obstruction to be removed; and if the Mamlatdar directed the defendant to remove the obstruction, he was acting thereby outside the four corners of the juris diction conferred upon him under Section 5(2) of the Act. The learned Single Judge, for arriving at this conclusion, relied on the language of Section 5(2) of the Act. He also considered the provisions of Clause (a) of Sub-section (1) of Section 19 and observed in that connection that clause deals with the points to be decided by the Mamlatdar at the hearing and does not deal with the powers of the Mamlatdar to pass an appropriate Order. Then the learned Judge referred to Section 21(2) of the Act and form 'C in which an order of injunction would be issued. These provisions coupled with other relevant provisions of the Act may now be reproduced.
4. In order to understand clearly the scope of the power of the Mamlatdar as conferred by Sub-section (2) of Section 5 of the Act, in a case like the present, it would be necessary to leave out the words which are not required, for the purpose of interpretation and to reproduce only the relevant words, as has been done by the learned Single Judge also at page 609 of the Report in Mukhtyarkhari's case (supra).
5. (2). The said Court shall also, subject to the same provisions, have power within the said limits when any person is otherwise than by due course of law disturbed or obstructed, or when an attempt has been made so to disturb, or obstruct any person, in the possession of any lands or in the use of roads or customary ways thereto, to issue an injunction to the person causing, such disturbance or obstruction, requiring him to refrain from causing or attempting to cause any further such disturbance or obstruction.
Section 19 of the Act lays down the statutory issues to be tried by the Mamlatdar; and so far as relevant' for our purpose, Clauses (a) and (c) of Sub-section (1) of Section 19 provides as under:
19(1). On the day fixed, or on any day to which the proceedings may have been adjourned, the Mamlatdar shall, subject to the provisions of Section 16, proceed to hear all the evidence that is then and there before him and to try the following issues, namely:
(a) If the plaintiff avers that he has been unlawfully dispossessed of any property or deprived of any use:
(1) whether the plaintiff or any person on his behalf or through whom he claims was in possession or enjoyment of the property or use claimed up to any time within six month before the suit was filed;
(2) whether the defendant is in possession at the time of the suit, and, if so, whether he obtained possession otherwise than by due course of law;
(c) If the plaintiff avers that he is still in possession of the property or in the enjoyment of the use, but that the defendant disturbs or obstructs, or has attempted to disturb or obstruct, him in his possession or use:
(1) whether the plaintiff or any person in his behalf is actually in possession or enjoyment of the property or use claimed ;
(2) whether the defendant is disturbing or obstructing, or has attempted to disturb or obstruct, him in such possession or enjoyment;
(3) whether such disturbance or obstruction, or such attempted disturbance or obstruction first commenced within six month before the suit was filed.
Sub-section (4) of Section 19 reads as under:
(4) Where the Mamlatdar' finding upon the issues is in favour of the plaintiff, he shall make such order, not being in excess of the powers vested in him by Section 5 as the circumstances of the case appear to him to require; and where his finding is in favour of the defendant, he shall dismiss the suit. In either case the costs of the suit, including the costs of execution, shall follow the decision.
Sub-section (1) of Section 21, which unfortunately, was not referred to before the learned Single Judge, may also be reproduced in so far as it is relevant for our purpose ;
21(1) where the Mamlatdar's decision is for removal of an impediment or for awarding possession or restoring a use, he shall give effect thereto by issuing such orders to the village-officers, or to any subordinate under his control or otherwise as he thinks fit;
Sub-section (2) of Section 21 reads as under:
21(2) Where the Mamlatdar's decision is for granting an injunction, he shall cause the same to be prepared in the form of Schedule BB or C, as the case may be, and shall deliver or tender the same then and there to the defendant, if present, or if the defendant is not present, shall send it to the village-officers, or to any subordinate under his control, to be served upon the defendant.
Section 22 of the Act is also relevant for our purpose; and it reads in so fir as material, as under:
22. Subject to the provisions of Section 23, Sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment or the party to whom the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to have the surface water upon his land flow unimpeded on to adjacent land or continue in possession or use, as the case may be, until otherwise decided or ordered, or until ousted, by a competent Civil Court.
5. The scope for the conclusion arrived at by the learned Single Judge arose on account of the terminology expressed in Section 5 (1) with regard to the natural flow of surface water, and possession of lands or use of water from any well, as distinguished from the terminology used in Section 5(3) regarding the use of roads or customary, ways, inter alia to agricultural lands. It is not disputed that Sub-section (1) of Section 5 does not apply to the facts of the present case, because the suit is not for removal of any impediment to the natural flow of water, nor is it for possession of any land or for restoration of the use of water from any well as contemplated by Section 5(1). The suit is to abate an obstruction created in the use of a road or customary way to the agricultural land, falling within Section 5(2) of the Act. When we come to the statutory issues contemplated by Section 19, we find distinct issues provided for the distinct categories of cases contemplated by Section 5(1) and (2). Thus, Section 19(1)(aa) prescribes issues in a case where natural flow of surface water has been impeded by any erection raised by the defendant ; and one of the issues is 'whether the defendant erected any such impediment?' The statutory issue with regard to Clause (b) of Section 5(1) relating to possession of any lands or premises used for agriculture etc. inter alia provides for proof of the fact that the defendant obtained possession otherwise than by due course of law. Similarly, with regard to restoration of any use as contemplated by Section 5(1)(b), the relevant issue provides for the proof of enjoyment of the use. With regard to the obstruction in the use of road or customary way as contemplated by Section 5(2), the statutory issue as contained in Section 19(1)(c) as reproduced above, contemplates proof of the fact that the plaintiff is still in possession or enjoyment of the property or use and the defendant has disturbed or obstructed him in possession or use thereof. In that case, one of the statutory issues is whether the plaintiff is actually in possession or enjoyment of the property or use claimed.
6. In Mamlatdars' Courts Act, 1876 (Bombay Act III of 1876) Section 4 corresponded to Section 5 of the present Act, and Section 15 which corresponded to Section 19 of the present Act provided for the statutory issues. A matter arising under the old Act came up before a Division Bench of the Bombay High Court in Nanabhai Sadanand v. Dvarkadas Dharamsi and Anr. 3, Bombay Law Reporter, page, 631, wherein the plaintiff had claimed a right of way over a road to his property; and this defendant had obstructed in the enjoyment of that right by erecting a hedge across the road. In that case, the Mamlatdar framed issues under Section of the old Act (corresponding to Section 19(c) of the present Act). The plaintiff contended in that suit that he was in possession or enjoyment of the use of the road in dispute and, therefore, appropriate issues should be framed not under Section 15(c), but under Section 15(b) of the old Act. This application was rejected by the Mamlaldar. Then, the Mamlatdar without going into evidence also rejected plaintiff's claim holding that under Section 4(1) the Court had no power to restore the use of a road, and it can only grant an injunction under Clause (2) of that section in respect of the use of a road. He held that the plaintiff was not entitled to claim the relief by way of injunction, because he was not in possession of the use at the time of the suit. The matter went in revision to the High Court; and Chandavarkar, J speaking for the Division Bench stated with reference 'o the plaintiff's allegation, as under:
We take that allegation to mean no more than that it was that obstruction which prevented his use of the road. But that does not imply an admission on his part 'that he was not in actual enjoyment of the use claimed. Section 15 must be read subject to Section 4 which is the section which gives jurisdiction to the Mamlatdar A person is in the enjoyment of a use within the first issue when but for the obstruction he complains of he would be in use. That is the only reasonable interpretation of Clause (c) of Section 15, having regard to the fact that the enjoyment of the user mentioned in the first issue prescribed by it does not refer to any enjoyment on the date of the suit.
In Bhau Mangesh's case (8 Bom. L.R. 312) another case arising under the old Act - the plaintiff claimed way from his bungalow through the land of the defendant to approach another land of the plaintiff by the side of the defendant's land. Plaintiff's way to his land was obstructed by raising cactus hedge and a shed. The plaintiff, therefore, approached the Mamlatdar under the old Act praying that the Court may order the defendant to remove the said cactus hedge and the shed and make the plaintiff's passage clear. This application came to be rejected by the Mamlatdar observing that it is only by injunction to the person causing obstruction in the use of a road that the Mamlatdar can give relief, and no such relief was sought by the plaintiff, who in view of the only issue to be tried under Section 15(a) of the old Act, can claim relief only if he is unlawfully dispossessed of any property such as lands, premises etc. or if he was deprived of the use only of such things as water from wells etc. The matter went in revision to the High Court. Russell, J. referred to the provisions of Section 15(a) of the old Act and stated as under at page 321:
Now what do we find when we look at Section 15? Section 15 says, 'On the day appointed the Mamlatdar shall proceed to hear all the evidence that is then and there before him, and to try the following issues, viz.:
(a) If the plaintiff avers that he has been unlawfully dispossessed of any property or deprived of any use:
(1) Whether the plaintiff or any person on his behalf or through whom he claims was in possession or enjoyment of the property or use claimed upto any time within six month before the suit was filed.
(2) Whether the defendant is in possession at the time of the suit, and if so, whether he obtained possession otherwise than by due course of law.'
Now the words there used are deprived of any use'. It does not say 'any use such as is mentioned in the first paragraph of Section 4 of the Act, but 'any use' which, I apprehend, must be taken to sand 'any me of roads or customary ways as well as any use of water from any wells etc.'
Now what the plaintiff here alleges is that he has been obstructed in the use of this road to such an extent that he has been wholly deprived of the use thereof; and it is impossible to suppose that the second Clause of Section 4 of the Act was intended to refer only to cases of partial obstruction when a person was wholly prevented from using the road. Then the last paragraph of Section 16 is material.
'If the Mamlatdar's finding upon these issues be in favour of the plaintiff, he shall make such order as the circumstances of the case shall appear to him to require, provided that the same be not in excess of the powers vested in him by Section 4 of this Act.
He is given an entirely free hand with regard to the remedy that he is to give. Therefore the remedy in this particular suit will not be only the restoration of the use of the ways but he may grant an injunction also, and this is clearly seen when one sees the form of injunction which is Form C.
It seems to me, therefore, that the Mamlatdar was wrong in holding that he had no jurisdiction to try this case, and, in my opinion, the rule must be made absolute and I think with costs. (Emphasis supplied).
Now, it may be mentioned that provisions of Section 15(a) reproduced in the aforesaid observations are in part materia with Section 19(1)(a) of the present Act, and the provisions of the last paragraph of Section 15 are in pan materia with Sub-section (4) of Section 19 of the present Act. Aston, J. who was the other learned Judge of the Division Bench in the aforesaid case also decided the case on the footing that the plaintiff's case was that the defendant had unlawfully deprived him of the use of customary way to fields; and the statutory issues under Section 15(a) aross. He observed as under at page 322:
As the Mamlatdar has jurisdiction under Section 4 to grant an injunction in case of obstruction or disturbance to the use of roads or customary ways to fields and a deprivation of an use is a disturbance, the Mamlatdar is in error in supposing that the terms in which the statutory issues are framed for a case where the plaintiff does not aver deprivation of an use, deprive the Mamlatdar of the jurisdiction to try issues (a), and give such relief as he has jurisdiction to give under the second paragraph of Section 4.
7. It would be seen from the aforesaid decision of the Division Bench in Bhau Mangesh's case (supra) that Section 55(1)(a) of the earlier Act was in the same terms as Section 55(1)(a) of the present Act, and the High Court interpreted the words 'any use' occurring in the said Clause (a) of Section 15 as not necessarily restricted to the first para of Section 4 of the old Act, but also including any use of roads or customary ways as well as any use of water from any well. Therefore, in case of deprivation of the use of any road or customary way, the Mamlatdar, on finding upon relevant statutory issues, in favour of the plaintiff, can make such order as the circumstances of the case appear to him to require provided that the order should not be in excess of the powers conferred upon him by Section 5. Sub-section (4) of Section 19 in terms provides for power to make such order, not being in excess of the powers vested in him by Section 5, as the circumstances of the case appear to him to require.' This provision is in pari materia with the last clause of Section 15 of the old Act.
8. We have no reason why we should not interpret the relevant provisions of the present Act in the same manner as was done by the Division Bench in Bhau Mangesh's case (Supra). Therefore, in a case where there is complete obstruction to a road or customary way, the obstruction would in law amount to deprivation of the use of the road or way and with regard to such deprivation of the use of road or way, the appropriate order including removal of the obstruction can be passed by the Mamlatdar as contemplated by Sub-section (4) of Section 19 of the Act. Section 21(1) of the Act provides forgiving effect to the decision of the Mamlatdar restoring use by issuing such order to the village-officer or to any subordinate under his control or otherwise as the Mamlatdar thinks fit. This enabling provision in Sub-section (1) of Section 21 need not necessarily be confined to the cases contemplated by Section 5(1) only. The terms in which Section 19(4) and Section 21(1) are enacted are quite wide and would cover, on the basis of the reasoning given in Bhau Mangesh's case (supra), the full deprivation of the use of a road, by creating an obstruction making the road impassable.
9. Unfortunately, the decision in Bhau Mangesh's case (supra) was not brought to the notice of the learned Single Judge in which case the provisions in pari materia with the relevant provisions mentioned above,-were interpreted in the context of deprivation of the use of road by raising of a cactus hedge and a shed. The Division Bench in terms stated that the remedy in that suit was not only the restoration of the use of the way, but also an injunction. On a correct interpretation of Section 5(2) read with Section 194) of the Act we hold that the Mamlatdar acting under Section 5 of the Act has power to restore use of the road or customary way by ordering removal of an obstruction caused to the use thereof which may amount to total deprivation of the use of the road or customary way. Such an order cannot be said to be in excess of the power conferred on the Mamlatdar under Section 5(2) of the Act. This view gets support from the interpretation of similar provisions of the earlier Act of 1876 by the Division Bench of Bombay High Court in the aforesaid cases. Therefore, the view taken by the learned Single Judge in Mukhtyarkhari's case (supra) is, speaking with respect, not correct.
10. The second contention raised on behalf of the petitioner was that the Mamlatdar had no jurisdiction to pass any order in this case because his jurisdiction under Section 5(2) was limited to the use of roads or custo mary way only and that in the present case there was no averment that the way claimed by' the plaintiff was a road or a customary way. This contention, it is admitted, was not raised before the Mamlatdar. It was sought to be raised before the Deputy Collector, who negatived it. It appears from the order of the Mamlatdar, that the plaintiff has described this way as and has also stated that the said way had continued till the present day and since times immemorial. It is difficult, therefore, to agree at (his stage, while dealing with a revisional application under Section 115 of the Code of Civil Procedure, with the interpretation sought to be placed by Mr. Nanavati on this averment as one not disclosing a custo mary way. This contention of Mr. Nanavati must also fail.
11. In the result, the application must fail; and stands dismissed. Rule discharged with costs. Interim relief will stand vacated.