BHIMBHAI NATHUBHAI Vs. AMRITLAL MORARJI

JUDGEMENT

(1.) THIS is a revisional application by the plaintiff and it arises from proceedings instituted by the plaintiff under Section 5 of the Mamlat-dars Courts Act. The plaintiff claimed the right of way through Survey Nos, 98/2 and 101 of Kachholi belonging to the defendant. The statutory issues were framed by the Mamlat-dar. He found the right established. He also found dispossession proved within the statutory period. Thereupon he decreed the suit. When the matter went in revision to the District Deputy Collector, Navsari, the District Deputy Collector felt that this was a complicated matter and the Mamlatdar should have referred it to a civil Court under the first pro- viso to Section 5. On this view, the revisional Court has set aside the order passed by the Mamlatdar and has dismissed the plaintiff's suit. The plaintiff has come to this Court in revision against this order passed by the District Deputy Collector.

(2.) MR. Patel for the petitioner contends that, in reversing the decision of the Mamlatdar on the ground that the Mamlatdar had virtually committed a trespass in deciding complicated questions contrary to the provisions of the first proviso to Section 5, the District Deputy Collector has exceeded his jurisdiction. Mr. Patel argues that, in determining the question as to whether the plaintiff had a right of way as claimed by him, the Mamlatdar was justified in dealing with other incidental matters, and if he did that and came to a definite conclusion in favour of the plaintiff, the District Deputy Collector had no right to interfere with the rinding of the Mamlatdar on the ground that the Mamlatdar had purported to decide complicated questions and that he should have referred them to a civil Court. Besides, Mr. Patel contends, whether or not the matter should be" referred to a Civil Court on the ground that it is complicated under the first proviso to Section 5 is primarily for the Mamlatdar to consider, and not for the revisioaal Court. In support of his argument, Mr. Patel is fortunately able to refer to a ruling of a Division Bench of this Court in -- 'jagannath v. Dhondu', AIR 1924 Bom 352 (A ). In this case, Macleod C. J. who delivered the judgment of the Bench, has observed that the revisional powers vesting in the revisional Court under Section 23, Sub-section (2) do not justify setting aside of an order passed by the Mamlatdar on the ground that the Mamlatdar has entered upon complicated questions which are outside the province of the Act. In other words, in this case, the revisional judgment was set aside on the ground that the revisional Court had exceeded its jurisdiction in virtually compelling the Mamlatdar to take recourse to the first proviso to Section 5. I am bound by this decision and I must hold that the revisional Court in the present case exceeded its jurisdiction in. setting aside the order of the Maniladar solely on the ground that the Mamlatdar had purported to deal with complicated questions.

(3.) IN the result, the revisional applica tion must be allowed, the order passed by the revisional Court set aside and that of the Mam latdar restored with costs throughout. Revision allowed.