KANBI RAVTABHAI DHARMABHAIversusLHS OF LRS OF DECD. KANBI DHANABHAI RAMABHAI

 C/SCA/7399/2025                                      CAV JUDGMENT DATED: 09/02/2026




                                                    Reserved On   : 16/10/2025
                                                    Pronounced On : 09/02/2026

           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 7399 of 2025
                              With
 CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2025
         In R/SPECIAL CIVIL APPLICATION NO. 7399 of 2025


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                                 Sd/-
================================================================
          Approved for Reporting                       Yes          No
                                                                    No
================================================================
              KANBI RAVTABHAI DHARMABHAI & ANR.
                            Versus
     LHS OF LRS OF DECD. KANBI DHANABHAI RAMABHAI & ORS.
================================================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2
MR KAUSHAL H PATEL(9328) for the Petitioner(s) No. 1,2
MR JEET K JOTANGIA for the Respondent(s) No. 17,18
MS KRUTI M SHAH FOR MR JAY N SHAH(10668) for the Respondent(s)
No. 10,11,1.1,12,1.2,13,1.3,14,1.4,15,1.5,16,1.6,1.7,1.8,3,4,5,6,7,8,9
NOTICE SERVED BY DS for the Respondent(s) No. 17,18,2
================================================================
 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                CAV JUDGMENT


1.    The present Special Civil Application is filed praying for the

following reliefs:-

      “23(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus
      or a writ in the nature of mandamus and/or any other appropriate writ,
      order or directions quashing and setting aside the impugned order
      dated 23.08.2024 passed by the Mamlatdar, Dhanera in Mamlatdar's
      Courts Act η Case No.9 of 2023 (Annexure M to the present petition) as
      well as dated 19.05.2025 passed by learned Deputy Collector, Dhanera
      in Mamlatdar Court Act Revision Appeal No.6 of 2024 (Annexure Q to
      the present petition), in the interest of justice;




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      (B)      During the pendency and final disposal of the present petition,
      YOUR         LORDSHIPS   may     be    pleased    to   stay    the   operation,
      implementation and execution of the impugned order dated 23.08.2024
      passed by the Mamlatdar, Dhanera in Mamlatdar's Courts Act Case
      No.9 of 2023 (Annexure M to the present petition) to the present dated
      well as as 19.05.2025 passed by learned Deputy Collector, Dhanera in
      Mamlatdar Court Act Revision Appeal No.6 of 2024 (Annexure Q to the
      present petition), in the interest of justice;


      (C)      Pass any such other and/or further orders that may be thought
      just and proper, in the facts and circumstances of the present case.


2.    The factual matrix giving rise to the present writ petition is

that the petitioners are the owners of Survey No. 72 and

petitioner No. 2 of Survey No. 78 of Village Mandal, Tal.

Dhanera. The respondents claimed that for access to their

agricultural lands, they had been using a road passing through

the petitioners’ land. Alleging that the petitioners had closed and

obstructed the said way, the private respondents instituted

proceedings under the Mamlatdars’ Courts Act, 1906 before the

Mamlatdar, Dhanera. Accordingly a panchnama was drawn on

12.09.2023 by the Circle Officer, Jadiya. The Mamlatdar,

Dhanera, by order dated 23.08.2024 directed the petitioners to

remove the alleged obstructions and not to prevent the

respondents from using the disputed road. Aggrieved by the said

order, the petitioners preferred Revision before the Deputy



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Collector, Dhanera, who, by order dated 19.05.2025, rejected the

revision application and confirmed the order passed by the

Mamlatdar.



3.      Mr. S.P.Majmudar, learned counsel for the petitioners

submits      that   the   Mamlatdar     failed   to    frame      issues      as

mandatorily required under Section 19(1)(c)(1)(2)(3) of the

Mamlatdars’ Courts Act and did not record findings on such

issues. Framing of issues and recording findings thereon is a

condition precedent for deciding a suit under the Act. Reliance is

placed on Civil Revision Application No. 1280 of 2000 (Paras 7,

9, 11, 12, and 13), wherein this Court held that without framing

and deciding statutory issues, the Mamlatdar lacks jurisdiction

to decide the suit. Learned counsel for the petitioners further

submits that the proceedings before the Mamlatdar were clearly

barred by limitation as the suit was filed beyond the period of six

months prescribed under Section 5(3) of the Act, and therefore,

the Mamlatdar lacked jurisdiction to entertain or decide the

case.



3.1     He further submits that the Panchnama dated 12.09.2023

was prepared by the Circle Officer, which is impermissible under



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Section 19(2) of the Act as the statute mandates that spot

inspection must be carried out by the Mamlatdar himself. The

petitioners rely upon the judgment reported in Nagarbhai

Bhikabhai Keda Vs. Deputy Collector 2023(3) GLH 583 (Paras 11–

15), wherein this Court has held that a Panchnama carried out

by a Circle Officer instead of the Mamlatdar, cannot be relied

upon for deciding a suit under Section 5 of the Act. It is further

submitted that the Mamlatdar has based his findings on two

impermissible grounds - first, the illegal Panchnama prepared by

the Circle Officer, and second, an alleged admission which has

no   documentary    support    in    the     inspection     report     dated

20.08.2024. Learned counsel for the petitioners submits that

photographs produced by the respondents do not pertain to the

petitioners’ land, but are of the riverbank. Learned counsel for

the petitioners further submits that the affidavit of one

Jagshibhai Surtaji Koli is unreliable, having been filed due to

personal enmity arising from a police complaint made by the

petitioners’ family and hence, it should not have been relied

upon by the authorities below. The petitioners state that they

had already filed Regular Civil Suit No. 3 of 2023 regarding

encroachment by the respondents, which is prior in point of

time. In view of Section 26 of the Act, once a civil suit concerning


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the same land between the same parties is pending, the

Mamlatdar has no jurisdiction to entertain a suit under Section

5.



4.    Per Contra, Ms. Kruti M. Shah, learned counsel for the

respondents submits that the suit is neither barred by limitation

nor devoid of cause of action. It is specifically pleaded in the

plaint that on 27.06.2023 the petitioners closed the existing road

by digging their agricultural fields and cultivating groundnut and

the suit was filed on 17.08.2023, i.e. well within six months from

the accrual of cause of action as contemplated under Section

5(3) of the Act. Learned counsel for the respondents submits that

it has been conclusively established on record that the only

access available to the respondents to reach their agricultural

lands in Revenue Survey Nos. 65 and 66 is the traditional road

passing through the lands of the petitioners and that no

alternative road exists. The markings asserted by the petitioners

on the village map were not proved before the authorities below.

Learned counsel for the respondents submits that the issue of

alleged encroachment over 11,647 sq. metres, which is the

subject matter of Regular Civil Suit No. 3 of 2023, is wholly

irrelevant to the present proceedings under the Act, which


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concern only the right of way. In cross-examination, petitioner

No.1 has himself admitted that the civil suit pertains to

encroachment, whereas the present proceedings relate to right of

way. She further submits that the technical objections regarding

framing of issues or strict adherence to the Code of Civil

Procedure are not tenable in summary proceedings under the

Act. The petitioners never raised such objections before the

Mamlatdar and have acquiesced in the procedure and therefore,

principles of waiver, acquiescence and estoppel operate against

them.



5.    Learned counsel for the petitioners in rejoinder submits

that the Panchnama and map prepared in Regular Civil Suit No.

3 of 2023 are very much relevant and could not have been

brushed aside by the authorities below. It is pointed out that

respondent No.11, in his cross-examination, has admitted that

even during the monsoon season there was no cultivation in the

respondents’ fields and he was present at the time of drawing of

the Panchnama in the civil suit proceedings and had signed the

same. In these circumstances, the conclusion drawn by the

Mamlatdar and the Deputy Collector about a well-defined

customary way is wholly unjustified. Learned counsel for the


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petitioners further submits that the so-called sale deeds

executed inter se between the private respondents from 2009

onwards, in which they have inserted recitals of a right of way

through the petitioners’ land are not binding on the petitioners

who are not parties thereto. Merely recording an alleged right of

way in such inter se conveyances cannot create any legal right

against third parties or confer an easement over the petitioners’

land.



6.      Heard learned counsels for the parties, perused the

documents and considered the submissions.



7.      The Mamlatdar by order dated 23.08.2024 found that the

respondents were owners of agricultural lands bearing R.S. Nos.

65 and 66 of Moje Mandal, Taluka Dhanera, and that their only

access was through the road passing over the petitioner’ lands

bearing new R.S. Nos. 78 and 72. The petitioners obstructed the

said road on 27.06.2023 by planting thorny bushes, digging the

road and cultivating crops, following which the respondents filed

the suit under Section 5(2) of the Mamlatdars’ Courts Act. The

panchnama by the Circle Officer dated 12.09.2023 and the site

inspection conducted on 20.08.2024 clearly establish long and


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continuous use of the road by the respondents, absence of any

alternative access and illegal obstruction by the petitioners.

Accordingly the Mamlatdar held that the respondents were

entitled to protection of their right to way under Section 5(2) of

the Mamlatdars’ Courts Act subject to the outcome of the

pending civil suit R.C.S. No.3 of 2023, which would be binding

on the parties.



8.    The Deputy Collector, by order dated 19.05.2025, held that

the petitioners had failed to prove the existence of any

alternative access route to the respondents’ agricultural lands. It

was held that the sale deeds and revenue records produced by

the petitioners did not conclusively disprove the existence of the

disputed road, while the affidavit of the son of the original owner

supported the respondents’ case regarding long-standing use of

the access road. The Deputy Collector further held that the

panchnama prepared by the Circle Officer and the site

inspection conducted by the Mamlatdar clearly established that

no alternative road was available. It was observed that many

agricultural access roads may not be reflected in village maps or

records, yet are customarily used by farmers. Accordingly the

Deputy Collector rejected the revision application and confirmed


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the Mamlatdar’s order.



9.    In the present case, the suit is filed before the Mamlatdar

on 17.08.2023. The cause of action as pleaded in the plaint

arose on 27.06.2023. Further, though the Panchnama was

prepared by the Circle Officer, the same was after due intimation

to all the parties and in the presence thereof. The Panchnama is

also signed by the parties to the suit. The Mamlatdar has

thereafter personally done the site inspection on 20.08.2024.

      In view thereof, there is no substance in the contention of

the learned advocate for the petitioners that the proceedings

before    the      Mamlatdar     have     been      conducted           dehors      the

provisions of the Act. Both the authorities below have come to a

categorical        findings   concurrently        that     the    way     has     been

obstructed by the petitioners and there is no alternative access

to the respondents.



10.   This Court does not find any ground to interfere with such

a concurrent findings especially when the said proceedings are

summary proceedings as envisaged under Section 5 of the

Mamlatdars’ Courts Act which is meant to provide immediate

relief in case of unauthorized obstructions or hindrance of right


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of way.



11.   It is well settled that when the Mamlatdar and the Deputy

Collector have concurrently found existence of a right of way

through the shortest and traditionally used route, and such

findings do not suffer from perversity, the High Court would not

interfere in writ jurisdiction as the proceedings under Section 5

of the Mamlatdars’ Courts Act are summary and any substantive

civil rights remain open to be adjudicated before the Civil Court.


12.   This Court finds that the impugned orders are within

jurisdiction, based on appreciation of evidence, and free from

perversity or patent illegality. If the parties have any grievance,

they can always establish their easementary rights through

appropriate civil proceedings.


13.   In view of the above observations, the Special Civil

Application is devoid of merits and is accordingly dismissed. No

order as to costs.

      In view of disposal of main writ petition, the Civil

Application for interim relief does not survive and is disposed of

accordingly.

                                             (ANIRUDDHA P. MAYEE, J.)


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                                               FURTHER ORDER


            After pronouncement of the judgment, learned advocate for

the petitioners submits that the impugned orders be stayed for a

period of 4 weeks so as to enable the petitioners to approach the

Higher Forum.

            The prayer is opposed by the learned counsel for the

respondents.

            Considered the submissions. The prayer is rejected.


                                                                                                              Sd/-
                                                                                   (ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: KAUSHIKKUMAR DINESHCHANDRA CHAUHAN(HC00197), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 09/02/2026 14:45:19




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