Khusad Gram Panchayat Vs. Managing Trustees of Mutawallis of Masjid of Khusad Village and ors. - Court Judgment

1. Both these appeals are directed against the judgment of the learned Assistant Judge, Surat, in Regular Civil Appeal No. 279 of 1977 arising from the judgment of the learned Civil Judge, Junior Division, Olpad, before whom Regular Civil Suit No. 8 of 1971 was filed by the Administrators, Mutawallis and Trustees of Masiid of Khusad village, who are appellants in cross Second Appeal No. 496 of 1979.

2. The aforesaid suit was filed by the aforesaid plaintiffs against Khudsad Gram Panchayat (hereinafter referred to as 'the Panchayat') on the allegation that in the property of the Masjid the Panchayat by demolishing the Ota attached to the well, and filling up the well constructed a road from south to north. It is the case that the Panchayat had no authority, but went on giving notices twice or thrice to the plaintiffs who also replied the notices all the times, denying the right of the Panchayat on the land of the Masjid. First of all it seems that the Panchayat objected to the construction being made by the Masjid authorities who were erecting some cess-pool and repairing the Ota. It was considered by the Panchayat that they were erecting some permanent structures with a view to obstruct the public to pass on that road to go to the pond on the north and fields, because the entire village is situated towards the south of the Masjid property, and it starts from the houses of Patidars.

3. It was the case of the Panchayat that permission to make construction should have been obtained but 'the Masjid authorities stated that they were not carrying out any construction which required permission. Thereafter, the claim of the Panchayat about the road was disputed. In spite of that, on 10-121970, in the morning the Panchayat Sarpanch and its agents illegally trespassed into the Masjid land and removed the repairs carried out on the well and demolished the Ota of the Masjid attached to the well and filled-up the well and made a way of about 175 feet north-south in length and 15 feet in width east-west. Suit was, therefore, filed by the original plaintiffs for declarations and Permanent and mandatory injunctions and for Rs. 500/- as compensation for damages to the Property of the Masjid against the defendants,

4. The suit was contested by the Panchayat on the ground that the suit was not maintainable, and that it was a public road and it was not the property of the Masjid alone. But in the written statement it was also stated that the Panchayat did not do anything for demolition of the construction made by the M9sjid authorities, but the people of the village might have done that, be.-; cause there was a road already in existence and the Masjid authorities attempted to create impediments on the road. The suit was contested on the ground that there was a public road and it was in Possession of the Panchayat, and the Panchayati had taken water vide-line through property and also erected lamp-posts for light for the facility of the Public to pass from the road and. therefore, the plaintiffs had no authority to sto.13 the village people from Passing from this road and. therefore. -it was stated that the suit of the plaintiffs for permanent and mandatory injunction and also claim for damages was not proper. The suit against the Panchayat was therefore, not maintainable. On these and various other grounds it was Prayed that the suit be dismissed.

5. The learned trial Judge decreed the suit of the Plaintiffs and declared that the defendant-Panchayat had no right to demolish the Ota and the old well and its platform repaired by the plaintiffs by entering into the suit land, and to fill Up the well and to Prepare the road for public traffic on the eastern side of the Masjid in the property in possession occupation and Vahivat of the Masjid. The trial Court also declared the actions resolutions and Proceedings of the defendant-Panchayat as illegal and against the statutory provisions. The trial Court further restrained the defendant-Panchayat, its agents servants and associates permanently and perpetually from obstructing or preventing the plaintiffs (sic) in the plaintiff's Possession and Vahivat of the suit land on the eastern and northern side of the Masjid and in the land enclosed and encircled by the hedge which is in plaintiff's Possession. The trial Court also Permanently and perpetually restrained the defendant-Panchayat from using or permitting to be used the plaintiffs' suit lands as public way by themselves, their agents. men. associates, for the Passage of carts, carriages or other vehicles either to or from the land north south on the eastern side of the Masjid and also ordered payment of Rs. 500/as damages.

6. Being aggrieved by this order, the Panchayat filed an appeal to the District Court. The learned Assistant Judge who heard the said appeal, Partly allowed the appeal, and instead of full decree in favour of the plaintiffs, ordered that the public had a right of foot-way on the east of the mosque building and. therefore ordered that the defendant-Panchayat cannot be restrained from using it for the limited purpose. Barring this modification, the entire decree of the trial Court was confirmed.

7. Being aggrieved by the said judgment and decree of the learned appeilate Judge, the defendant-Panchayat has approached this Court by way of Second Appeal No. 385 of 1979 for setting aside the entire judgment and decree of the appellate Court as well as the trial Court while the original plaintiffs have approached this Court by way of Second Appeal No. 496 of 1979 to set aside whatever Partial decree the appellate Court has passed in favour of the Panchayat and public of village Khudsad.

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8-9. The appeal was admitted only on the point of law, 'whether the earlier judgment of the Revenue Tribunal has been correctly interpreted by the appellate Judge?' But here before me arguments were also advanced about the illegality of the notice and about the non-maintainability of the suit under S. 1.01, of the Gujarat Panchayat Act. 1961 (hereinafter referred to as 'the Act'). So. these are the two additional grounds which are advanced.

Mr. S. B. Vakil. learned Advocate, appearing for the other side, objected to these grounds being taken and argued, mainly because the Particular type 0f Plea referred to by Mr. Oza was not taken up in the trial Court,

10. Mr. Oza referred to me the decision of the Supreme Court in State of Rajasthan v. Rao Raja Kalvan Singh, AIR 1971 SC 2018, wherein it has been observed 6at p. 2019):

'A Plea of non-maintainability of suit is a legal Plea and can be accepted although no specific Plea was taken or Precise issue framed.'

11. In J. C. Chatterjee v. Sri Kishan Tandon. AIR 1972 SC 2526. it has been observed (at P. 2527):

'Where in a suit for ejectment of a tenant the plaint allegation as to termination of tenancy by a valid notice is neither denied nor any issue demanded thereon by the defendant. the point as to termination of tenancy being essentially one of law can be raised in second appeal and decided by the High Court without remanding the case.'

I, therefore, think that Mr. Oza should be permitted to raise these points, as they also involve consideration of law Points and interpretation of the provisions of the Act.

12. The first point that is argued is on the strength of the point raised while admitting the appeal about the decision of the Revenue Tribunal. It is an admitted position that earlier there was a dispute Pertaining to a way and also encroachment by the Masjid somewhere in year 1949. Inquiry was instituted under S. 37(2) of the Bombay Land Revenue Code, 1879 (hereinafter referred to as 'the Code') round about 17-5-1949. wherein Government claimed ownership of a foot-track caused by using the way through a gap which was kept initially or)en. but was closed by the Masjid authorities by putting a door. In that inquiry, the Prant Officer, Chorasi Prant, declared it to be a public way vesting in Government. Appeal to the Collector also failed and, therefore, appeal was filed before the Bombay Revenue Tribunal. In the trial Court. This contention was attempted to be supported only by entry Ex. 133, showing that the Prant Officer had held inquiry under S. 37(2) of the Code and nothing more. As this did not lead to any specific decision. and it was contended that that decision did not refer to the disputed land, at the appellate stage certified copy of the appeal memo filed before the Bombay Revenue Triburial was produced at Ex. 87, and the judgment of that Tribunal was produced at Ex. 86. The learned appellate Judge after having considered these documents, as well as the evidence on record, came to the conclusion that that decision did not refer to the disputed way but it referred to some other Portion of the land and, therefore,, came to the conclusion that there was no bar of Section 37 of the Code and the suit was maintainable.

13. It is not in dispute that if it can be proved by the Panchayat that the inquiry was held under Section 37 of the Code by the Collector for 'this particular land and then if the Procedure laid down in Section 37 of the Code is not followed. the maintainability of the suit can be successfully challenged.

14. Sub-section (1) of Section 37 of the Code Provides the all Public roads, lanes and paths the bridges ditches, etc. which are not the property of individuals or of aggregate of persons legally capable of holding property, are declared to be, with all rights in over the same or appertaining thereto, the property of the Government and shall be lawful for the Collector subject to the orders of the State Government to dispose them of in such manner as he may deem fit. etc, Sub-section (21) of Section 37 of the Code is very material for our purposes. It reads:

'37, (2) Where any property or any right in or over any properties is claimed by or on behalf of the Governmentby any person as against the - Government. it shall be lawful for the Collector or 'a survey officer, after formal inquiry of which due notice has beer given, to pass an order deciding the claim.'

Sub-section (3) of it provides:

'37 (3) Any suit instituted in any civil Court after the expiration of one year from the date of any order passed under sub-section (1) or sub-section (2), or, if one or more appeals have been made against such order within the period of limitation, then from the date of any order passed by the final appellate authority, as determined according to Section 204, -shall - be dismissed although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order. Provided that in the case of an order under subsection (2) the plaintiff has had due notice of such order.'

It is, therefore very clear that if such an order is Passed and it was finally concluded before the Bombay Land Revenue Tribunal, and if no suit is brought within one year then this suit would not have been maintainable. But it was attempted to be shown before the appellate Court that the dispute before the Bombay Revenue Tribunal in the inquiry under Section 37(2) of the Code did not certain to the suit land which in dispute now.

15. The learned appellate Judge considered the topography of the properties of the Masjid and the road also. Any came to the conclusion that the decision of the Bombay Revenue Tribunal did not refer to the suit land. It is very clear from Ex. 86. decision of the Bombay Revenue Tribunal, that the disputed land which was used as a Passage for human beings was between the Masjid to the north and the Masjid land to the south. meaning thereby, that the Masjid was shown towards the north of the road. Towards the south of that 'way there was some open land. It is Of course true that the case of the plaintiffs was somewhat queer from reading of this because in paragraph 11, the learned appellate Judge has considered that the say of the plaintiffs is that it related to the public road situated on the north of the Masjid building. Therefore while considering the judgment of the Bombay Revenue Tribunal the learned appellate Judge specifically observed that Masjid building was situated on the north and oven land was situated on the south of the land in dispute before the Tribunal. But again, thereafter, the learned appellate Judge considered that the theory deposed to by the plaintiffs that the dispute was in connection with the road situated on the north of the Masjid appears to be true, does not seem to be a correct assessment made by the learned Appellate Judge. But at any rate, his assessment that the order in inauirv under Section 37(2) of the Code did not refer to the disputed land seems to be justified and correct:

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16-17. Mr. Oza 'wanted to submit that there must be some misreading about the position in the judgment of the Bombay Revenue Tribunal and. Therefore this Court can correct it. I am afraid, when the case of the parties is divergent showing that the previous order did not refer to this land, any other party says that it refers to a particular land and that reading of the judgment of the Bombay Revenue Tribunal itself clearly shows that it did not pertain to the Property in question, it would not be open to this Court at the stage to consider that there was any mistake on the Dart of the Bombay Revenue Tribunal. In view of this, I hold that there is no bar of Section 37(2) or the Code so far as the present suit concerned.

18. The second ground which has been agitated before me is that the suit is not maintainable under Section 101 of the Act, which reads:

'101. (1) In any revenue village where any property or any right in or over any property is claimed by or on behalf of the Panchayat or by any person against the Panchav6t. it shall be lawful for the Collector, after formal enquiry of which due notice has been given to pass an order deciding the claim.

(2) Any suit instituted in any Civil Court after the expiration of one year from the date of the communication of any order passed by the Collector under sub-see. (1), or if one or more appeals have been made against such order within the period of limitation, then from the date of the communication of any order passed by the final appellate authority as determined according to Section 204 of the Land Revenue Code shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is consistent with such order, provided that the plaintiff has received due notice of such order.'

It is significant to note that sub-see. (2) of Section 101 of the Act is analogous to sub-section (3) of Section 37 of the Code while sub-section (1) of Section 101 of the Act is like sub-section (2) Section 37 of the Code. It is conceded by Mr. Oza that there is no express bar, but implied1v it has been considered that will be lawful for the Collector to hold a formal inquiry where any Property or any right in or over the property is claimed by or on behalf of the Panchayat or by any person against the Panchayat. Therefore according to Mr. Oza, there being an implied bar, the parties should go before the Collector and should not approach a Civil Court.

19. The second argument advanced by Mr. Oza is that notice under Section 320 of the Act, though is given, is not given according to the provisions of the Act inasmuch as it is not given to the members of the Panchayat against whom a grievance is made and it is not sent to their residence. x x x x x

20. Mr. Oza referred me to the decision of the Bombay High Court L'I Abdul Maiid Haii Mahomed v. P. R. Novak. (1951) 53 Born. LR 621: (AIR1951 Bom 44,0). That was a case Pertaining to a notification issued by the Deputy Custodian of Evacuee Property, Bombay under Section 4(2) of the Bombay Evacuees (Administration of Property) Act. 1949. The Bombay High Court considered that there was no doubt. and there can be no doubt, that to the extent that the Custodian issued the notice in exercise of his revisional power under Section 26 M of that Ordinance, the notice was invalid. 'Having observed that, the Division Bench of High Court proceeded to validity of the notification under Section 7 (1) of that Ordinance. There it has been observed two conditions were required to satisfied before the Custodian could issued an order declaring any property to be evacuee property and those conditions were that he must give a notice in such manner as may be prescribed to the person interested in the Property, and the second condition was that he must hold such inquiry into the matters as the circumstances of the case may permit. Those two conditions were conditions Precedent to the exercise of his jurisdiction and if either of those two conditions was not complied with, the order passed by him undef Section 7 (1) would be an order without jurisdiction. It was, therefore, attempt of Mr. Oza to submit that the point of notice can be taken and the point raised by him about the notice under Section 320 of the Act and maintainability of 'the suit under Section 101 of the Act, goes at the root of the jurisdiction of the suit, then this Court in second appeal can permit that point to be argued it is true that so far as facts of that case were concerned, as the two conditions which were preconditions for the Deputy Custodian of Evacuee Property to have jurisdiction, were not satisfied, his action or order -passed by him under Section 7 (1) of the Ordinance was considered to be without jurisdiction. But this case cannot be considered on par with the dispute before me because the dispute is whether there is bar under Section 101 of the Act. If the bar is there, the matter ends.

21. By this provision of Section 101 of the Act. Mr. Oza wants to submit that the jurisdiction of the Civil Court is implied1y taken away. I am afraid, it is not so. Section 101 of the Act is merely an enabling provision. If either the Panchayat or any person who has claimed against the Panchayat approaches the Collector, then it shall be lawful for the Collector to pass an order after holding formal inquiry of which due notice has been given. It does not to be stressed that bar of jurisdiction of Civil Court cannot be read if inferred. There should be other express provisions or there should be some implication to show that the Civil Court cannot entertain and the jurisdiction is with a particular other forum. Section 101 of the Act nowhere shows that while making it lawful for the Collector to pass an order it made incumbent upon the parties to approach the Collector and nobody else, especially the Civil Court. On the contrary, reading, sub-section (2) of Section 101 of the, Act would clearly show that the suit is maintainable even against the order passed by the Collector within a particular period. But even that suit will not be entertained after a Particular period if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order. When there is no order of the Collector existing on record under Section 101 (1) of the Act, and if the suit is not brought to set aside such order or the relief claimed is not inconsistent with such order because such order is not in existence at all, the provisions of subsection (2) of Section 101 of the Act would not come into play and, therefore, the limitation Prescribed by that sub-see. (2) would also not come in force.

22. In order to impress upon me that there is implied bar, Mr. Oza relied on the decision of the Supreme Court M Dhulabhai, v. State of Madhya Pradesh AIR 1969 SC 78. In that judgment the Supreme Court enumerated some Principles regarding exclusion of jurisdiction of a Civil Court. Firstly, it was observed: (at P. 89)

'Where the statute gives a finality to the orders of the special tribunals the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit.'

Under Section 101 of the Act. Civil Court's jurisdiction is not excluded nor there is any adequate remedy or finality to that order. The second principle in the first Part refers to the express bar of the jurisdiction of the Court. But it is further observed. (at D. 89)

'... Where there is no express exclusion the examination of the remedy's and the Scheme of the Particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provide, for the determination of the right liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions in civil courts are Prescribed by the said statue's or not.'

Reading of Section 101 of the Act we do not go anywhere nearer the principles laid down by the Supreme Court. On the contrary. as considered earlier. Section 101 of the Act is merely an enabling provision holding it lawful for the Collector if any party approaches him. It is not a disabling provision that the parties should approach the Collector and Collector alone, and no civil suit shall lie in the Civil Court. Even by implication also it cannot be culled out from the provisions of Section 101 of the Act that there is an implied bar of the jurisdiction of the Civil Court. It has been further observed by the Supreme Court in the aforesaid decision at serial No. (7) of the propounded Principles:

'An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.'

That judgment of the Supreme Court on the contrary shows that unless there is express bar, exclusion of the jurisdiction of the Civil Court should not be readily inferred.

23. In order to brine out implied bar there should be a provision which give-1 finality to the order of the Tribunal or the authority having all the remedie3 which would be available to a party before a Civil Court. Section 101 of the Art cannot be said to be a self-contained Code so as to exclude the jurisdiction of the civil Court by implication. It is of course true that if somebody approaches the Collector and gets an order, then that order can only be challenged by the Procedure provided in sub-sec (2) of Section 101 of the Act and if that is not done, the order of the Collector will be a relevant factor which will militate against the claim of the party who would claim contrary to the findings given by the Collector.

24. Mr. Oza further relied on the provisions of Chapter IX-A of the Act, which refers to Power to evict persons from premises belonging to the Panchayat. He wanted to submit that because the Panchayat says that the road, meaning thereby the property, belongs to the Panchayat, and because the plaintiffs unlawfully encroached upon that property and attempted to erect structures thereon they were, properly evicted under the provisions of Section 193-A of the Act. According to Mr Oza, read line Section 193-A with Section 101 of the Act would clearly show that there bar of jurisdiction of the Civil Court. For -this, he also referred to Section 193-B which provides:

'193-E. No order made by the State Government or the Panchayat in the exercise of any Dower conferred by or under this Chapter shall be called in question in any Court and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Chapter.'

Precisely this is a matter of appreciation of evidence and Pleadings, and also dependant on facts. Mr. Oza could not show me from the Pleadings or the evidence led by the Panchayat that any claim under Chapter IX-A of the Act was ever made by the Panchayat. The question whether the property belongs to the Panchayat is a question which is inherently attacked. Not only that, but the proceedings started with the assumption that the property belongs to the Masjid and the Panchayat merely claims a right of wav for the human being as, tractors, bullock-carts, animals and even motor vehicles on this property claiming it to be a public road, and that is all. It was nowhere the case of the Panchayat that the Property belongs 'to the Panchayat and that the plaintiffs had unlawfully encroached upon the said property and, therefore, there was eviction. . Chapter IX-A of the Act postulates that there should be the premises belonging to the Panchayat and Section 193-A (1) refers to a person who is authorised to occupy the Premises as d tenant or otherwise and did not Day rent or sublet the premises in contravention of the terms. Clause (b) of sub-section (1) of Section 193-A authorises the Panchayat to issue notice, ordering any person in unauthorized occupation of any Panchayat premises to vacate them within one month from the date of service of notice. No such notice is brought to my notice during the arguments and. therefore, the Provision of Chapter IX-A of the Act cannot be invoked.

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25-26. I shall, now take up the second Point about the notice. Section 320 of the Act is as follows:

'320. (1) No action shall be brought against any Panchayat conciliation panch or Nyaya Panchayat or any member. officer, servant or agent 'of a Panchayat any member of a committee of a Panchayat conciliation panch or Nyaya Panchayat acting under its direction, under respect of anything in good faith done under this Act or any rule or bye-law.

(2) No action shall be brought against any Panchayat, conciliation panch or Nyaya Panchayat or any member, officer servant of agent of such Panchayat (any member of a committee of a Panchayat) conciliation panch or Nyaya Panchayat acting under its direction or anything done purporting to have been done by or under this Act, until the expiration of one month next after notice. in writing has been left for delivered at the office of the Panchayat, conciliation Panch or Nvaya Panchayat and also at the resistance of the member officer, servant or the action the notice shall state the cause of action, the nature of the relief sought: the amount of compensation claimed and the name and Place, of abode of the Person who intends to bring the action.

(3) Every such action shall be commenced within six months after the accrual of the cause of action and not afterwards.

(4) If any Panchayat conciliation Panch Nvaya Panchayat or Person to whom the notice under sub-section (2) is given shall before an action is brought, tender sufficient amends to the Plaintiff, and pay into Court the amount so tendered. the Plaintiff shall not recover more than the amount so tendered: the Plaintiff shall also pay all costs incurred by the defendant after such tender.'

Mr. Oza submitted that under sub-section (1) of Sec-Jon 320 of the Act, no action shall be brought against the Panchayat or Officer, etc. in respect of anything in good faith done under the Act or any rule or bye-law and, therefore, the suit brought by the Plaintiff is ineffective as no such action could be brought. Though he argued this point, he did not lay much stress on the provisions of sub-section (1) but. however has laid stress on the provisions of subsection (2) of S. 320 of the Act. mainly because a bar of sub-section (1) would be there if there is anything done in good faith under the Act and that good faith has to be improved from the evidence On record. It wills also required that it should have been pleaded and bar of sub-section (1) of Section 320 of the Act should have been specifically taken so that issues may be raised, and evidence could be led by both the -parties to show bona fides and also mala fides.

27. In plaint Para 12. plaintiffs specifically alleged that the Panchayat took the law in its own hand and arbitrarily and with high handedness Passed the resolution and entered the Property of the Masjid on 10-1 ' 2-1970 along with other persons. Even though this specific averment is in the plaint, in the written statement Ex. 20, the reply to Para 12 is Riven in paragraphs 9 and 10. Therein, on the contrary. the Panchayat has maintained that Panchayat or officers have not entered the land of the Masjid on that particular day and they have not done anything but it was done by the Dublie. It is stated in paragraph 10 that the defendant-Panchayat has not done anything as alleged by the plaintiffs and, therefore, there is no question of the action of the Panchayat being arbitrary or unlawful or having been done by taking law into their own hands. So it is not the claim of the Panchayat that whatever they did was under the Provisions of the Act within their Dower and bona fide so that it can be said that the Provisions of S. 320 of the Act were attracted.

28. Parties have not gone to the trial in the trial Court or even in the appellate Court on the ground that there was bar of Section 320 (1) of the Act to the suit of the Plaintiffs. and if that is so, and there is no evidence on record to come to the conclusion that whatever the Panchayat did was in respect of anything in good faith done under the Act, then the bar of sub-section (1) of Section 320 of the Act would not come 'in the Wav of the plaintiffs.

29. Mr. Oza very much stressed on sub-section W of S. 320 of the Act. It is his submission that it is the case of the plaintiffs that this action was done by the Panchayat as well as the Sarpanch and other members of the Panchayat and. therefore, if that is the allegation, then the notice to be Riven should be to the Panchayat and also should have been delivered at the office of the Panchayat and at the residence of the members officers, servants or, agents of the Panchayat and as that is not done, the notice is not proper. He therefore, did not' dispute the contents of the notice to show that it is illegal, but merely challenged the mode of delivery of 'he notice and the persons to whom it was to be delivered. It should be noted that such a point was not taken in the trial Court. In paragraph 40 while deciding issue No. 8, the learned trial Judge referred to suit notice Ex. 37, and observed that it is in consonance with provisions of Section 320 of the Act and no arguments are advanced by learned Advocate Mr. M. R. Atodaria for the defendant to show that the suit notice is in any way bad and against the Provisions of Section 320 of the Act. From the Judgment of the learned appellate Judge. it seems that the point about notice was not taken at all. But as I have considered that the point about the legality of notice would be a law Point and I have permitted Mr. Oza to raise that point, I am considering it. and I must say that his argument is completely misplaced because the requirement of issue of notice to the officers, argents, etc. of the Panchayat would be there if the action is intended to be brought against them. Wording of Section 320 (2) clearly shows that notice is required to be delivered at the residence of the members. officers, servants or agent thereof against whom the action is intended to be brought, meaning thereby. if action is ultimately brought against them, then it would be necessary that notice should have been issued to those Persons and delivered at the residence of those persons. But when the action is not brought nor was intended to be brought against anybody. else, how can it be said that the suit based on notice Ex. 37 is bad for want of proper service.

30. In notice Ex. 37, in paragraph 15, it is clearly mentioned that if the Panchayat would not make amends as mentioned therein then all the persons mentioned in that Para, who are residents of village Khursad and also concerned with the Khursad Masjid, desire to take legal steps against the Panchayat -of Khursad, and also it is stated that they would ask for the relief of declaration that the action of the Panchayat was illegal, without authority, without jurisdiction, arbitrary. etc. and that they would demand damage of Rs. 1,500/- from the Panchayat with the costs of the suit and also, would pray for an injunction against the Panchayat and that the Panchayat itself or through its servants, officers or agents, may not obstruct into the possession and administration of the Property of the Masjid, etc. So far as action to be brought against the Sarpanch individually is concerned, it is only stated that they would file a criminal complaint against him, and as this is not a criminal complaint, it is not necessary for me to consider that aspect.

31. In view of all these facts, it is abundant clear that there is no bar of S. 320 (2) of the Act also and, therefore this ground of attack also would not be available to Mr. Oza.

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32-33. Mr. Oza wanted to submit that there was a case before the appellance Court of dedication of the road in question by the Plaintiffs to the Panchayat. In paragraphs 16 to 20 the learned appellate Judge has considered that additional evidence was adduced by the Parties because the Panchayat was permitted to amend the written statement by raising plea in the alternative, that the land of the Masjid was dedicated by the trustees to use it as a public road. This amendment would clearly show that at a Particular stage the Panchayat agreed to concede to the title of the Masjid only. I observe this because the last limb of the arguments of Mr. Oza is about the plaintiffs failing to Drove the title. Thereafter, the learned appellate Judge has discussed the evidence led by the parties, which would be a point of fact, and on appreciation of that evidence, the learned appellate Judge came to the conclusion that the learned trial Judge was right in holding that the land on which the Panchayat claims a public wav belongs to the Plaintiff-trust and that there never existed a public road for Passage of vehicles. like carts, trucks and tractors till the members of t he Panchayat and other Patidars demolished the well, Ota and steps and constructed a road in December, 1970.

34. Mr. Oza wanted to spell out the dedication from some admissions made by the witnesses on behalf of the plaintiffs only about a foot-wav. First evidence is in the form of reply Ex. 49 given to the Panchayats notice dated 23-11-1970 by the plaintiffs. In Paragraph 4 thereof, it has been specifically averred that what even foot-track is there. it is north to south just touching the constructions made on the old 'Chho'. It is specifically averred that on that foot track (Pag Dandi) all the village people pass without any obstruction and that it is open for the village People without any obstruction and no change is made in that road since last 20 years. So, this was an admission about the foot-track even in the notice correspondence.

35. Further. during the evidence also, witness Umedsinh Anopsinh, examine-d on behalf of the plaintiffs at Ex. 80, has deposed that he was Talati-cum-Mantri of village Khursad from 1-1-1963 to 26-12-1971. He has further deposed that whatever way is there in between the Masiid and Dabu (open land) is a narrow road and from that bullock-carts or motor cannot pass. Even Ahmedbhai Vazirbhai. the main person examined on behalf of the plaintiffs at Ex. 62, has in Paragraph 24 during cross-examination specifically admitted that both the times when the Commissioner came, -people were using the road in between the eastern wall of the Masjid and the western hedge of Dabu. In Paragraph 26 also he has admitted that this land was being used by the public as a foot-track and they have not taken any objection about it from the beginning till the date of his deposition. Witness Sukhabhai Bhangad, examined on behalf of the plaintiffs at Ex. 86, has also deposed that the entire village was going from this foot-track and he also used to pass from that foot track thinking it to be a public way. He also stated that whenever there would be rain. the road which is to the west of the Masjid would be full of water, which would be knee-high.

36. From this evidence. Mr. Oza wanted to submit that there was dedication of this particular Portion of the land of the Masjid to the Public as a Public road and if that dedication is there. the entire breadth of the open land should be considered to be the road and, therefore. the learned appellate Judge was not justified in merely granting the foot-track.

37. In order to support his argument. Mr. Oza relied on the decision of the Supreme Court in Municipal Board. Manglaur v. Mahadeoii Maharai, AIR 1965 SC 1147. Therein the dispute was about erecting a statue of Mahatma Gandhi nearby the Place Of public road which was utilised by the public as such.

That statue was to be erected on the land adjoining to the public road~ but which was open. Therein the Supreme Court observed (at P. 1149):

'Inference of dedication of a highway to the public may be drawn from a Ion p, user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the -road, for they are necessary for the proper maintenance of the road. In the case of a Pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.'

These are the principles which were propounded on the strength of the dispute before the Supreme Court. In that case, there was a medalled road running through a plot of land belonging to the plaintiff and on either side of the metal led road there was oven space and on either side of the open space there was a municipal drain. The Public had been using the road for decades and the Municipality had been maintaining the road and the drains. The Municipality was seeking to erect a structure on the vacant site lying between the drains and the road wherein it intended to install a statue of Mahatma Gandhi and also to put up two rooms on either side for Divo and library. The Plaintiff brought a suit for a permanent injunction restraining the defendant-Municipality from putting up the structure on the suit site and also for delivery of possession of the same to the plaintiff. The Supreme Court held that the suit site was a Part of the Public Pathway as in the circumstances it was reasonable to hold that the entire pathway between the two drains was dedicated to the Public. The fact that only a part of the pathway is meddled does not necessarily limit the width of the pathway. But it was held that though the plaintiff cannot get possession. the Municipality could not put up. the structures which it. intended to erect on the vacant site as it could not be said that the structures were necessary for the maintenance or user of the road as a public highway. This judgment of the Supreme Court would not be very much bo6jvful to Mr. Oza.'main1V because in that case there was no dispute about the dedication of the land to the municipality as a pathway. In paragraph 5 of that judgment an argument was advanced before the Supreme Court on behalf of the original plaintiff that it was not established how the Municipal Board had become the owner of the said site though the metalled road passing through the said plot vested in it, There was evidence that for decades that road was used by the public as a public way in that judgment the Supreme Court after considering the various authorities including English authorities, observed (at D. 1149):

'.....Inference of dedication of a highway to the Public may be drawn from a long user of the highway by the Public, The width of the highway so dedicated depends upon the extent of the user. The side-lands are ordinarily included in the road, for they are necessary for the Proper maintenance of the road.'

It was therefore, submitted by Mr. Oza that if in the instant case the dedication of the pathway is considered by the learned appellate Judge, then the Portion around that pathway also should be considered to be a Dart and parcel of the road and, therefore, the breadth of 15 feet road could not have been denied by the~ learned appellate Judge.

38. From the aforesaid principles enunciated by the Supreme Court, Mr. Oza wanted to submit that from the facts appreciated by the trial Court and the appellate Court conclusion should have been arrived at that this was a dedication of the entire road to the Public. It is an accepted position that on this wav the Panchayat has installed lamp-posts for light. Pipe-lines also Pass through this Property. The learned appellate Judge specifically appreciated this aspect and accepted the Position on behalf of the Plaintiffs that they Permitted or they did not object the Panchayat Putting the lamp-posts mainly because that would be giving light to the Masjid also. They have admitted that one lamp-post is erected just at the entrance of the property of the Masjid and another lamp-post is erected near the house of the Moulin. It is also in evidence that they permitted the Pipe-lines to pass through this Property of the Masjid and taken to Halpativas because that would facilitate them to have water for the mosque and Moulvi -conveniently. The learned appellate Judge considered this explanation of the plaintiffs to, be natural and believable, and as this is a finding of fact, I do not propose to interfere with it. Of course, the theory that the lampposts and pipe-lines are also erected and taken through other private Properties was not accepted to be true by the learned appellate Judge. On overall consideration of the evidence, the learned appellate Judge came to the conclusion that there existed a footway running north-south and east-west of the Masjid building and the Moulvi's house, and it was being used by the people for Passage since so many years. He, therefore, allowed the appeal Partly.

39. Mr. Oza wanted to submit that. if the dedication should be there, it should be for the entire road and, therefore. he wanted to place reliance on (AIR 1965 SC 1147) (supra) to which I have already referred. , But as considered earlier. in that case there was a clear evidence that the road was used by the municipality since decades and there was a metalled road. In the instant case, it is only a pathway. If at all it is considered that there was a dedication as admitted by the witnesses on behalf of the plaintiffs and also in the reply to the notice. one cannot immediately jump to the conclusion that the entire portion was being used as a road. because the Courts below 'observed as point of fact that there was an Ota. steps and an unused well, and it is well-nigh impossible to consider that the road would be Passing from these places unless tfiev are demolished or made to the ground level.

40 to 43. x x x x x

44. * * * * Here before me the decision of this Court in Dallumiya Lalmiya Mal6k v. State of Gujarat, (1971) ' 12 Guj LR 668, is cited just to show the question of jurisdiction of the Civil Court after the order under Sections 37(1). 37(2) and 37(3) and also 37(4) of the Code. It is clear that the provisions of sub-secs. (2) and (3) of Section 37 of the Code are just on par with the provisions of Section 101 of the Act. By considering the provisions of sub-sections (1) and (2) of Section 37 of the Code this Court observed.

'As the Civil Court's jurisdiction has to be excluded expressly or by necessary implication. in the absence of any provision as to the nature of the suit which has to be filed the civil Court's jurisdiction can never be barred by any such assumption as to the form of the suit in this connection. Even if a limited right of Possession was established without establishing the plaintiff's title the Civil Court would be able to Protect this narrow right by injunction. These relief's in so far as they may be inconsistent with the order of the formal inquiry under Section 37(2) could always be granted on proof of title or possessory right of the plaintiff after leading proper evidence before the Civil Court.'

x x x x x

45. Therefore, on overall consideration of the arguments advanced before me, I come to the conclusion that both the appeals require to be dismissed with costs.

46. ****

47. Appeals dismissed.