SHRI. BALASAHEB KARBHARI UPHADE AND ORS.versusTAHASILDAR, DINDORI AND ORS.

                                                                           wp12314-2018-J.doc


                   AGK
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION

                                    WRIT PETITION NO.12314 OF 2018

                        1. Balasaheb Karbhari Uphade
                        2. Vimal Balasaheb Uphade
ATUL
GANESH                  3. Mangesh Balasaheb Uphade
KULKARNI
Digitally signed
                        4. Rupali Mangesh Uphade
by ATUL
GANESH
KULKARNI
Date: 2026.09.29
                        5. Dinesh Balasaheb Uphade
11:16:14 +0530
                        6. Snehalala Dinesh Uphade                   … Petitioners
                                           Vs.
                        1. Tahasildar, Dindori
                        2. Sub-Divisional Officer, Kalwan
                        3. Pandurang Karbhari Uphade
                        4. The State of Maharashtra                  … Respondents


                   Mr. Sanjay P. Shinde for the Petitioners.
                   Smt. S.D. Chipade, AGP for Respondent Nos.1, 2, and
                   4-State.
                   Mr. Sachin S. Gite with Mr. Sarfaraj J. Shaikh, Mr.
                   Mahesh Pawar and Mr. Aman Kazi for Respondent
                   No.3.

                                       CORAM                   : AMIT BORKAR, J.

                                       RESERVED ON             : SEPTEMBER 28, 2026

                                       PRONOUNCED ON           : SEPTEMBER 29, 2026

                   JUDGMENT:

                   1.      By filing the present Writ Petition under Articles 226 and 227
                   of the Constitution of India, the Petitioners are challenging the



                                                      1
                                                       wp12314-2018-J.doc


legality, validity, and correctness of the judgment and order dated
12 September 2017 passed by Respondent No.2 in Vahivat
Revision No.33 of 2017.

2.    The Petitioners were the original Opponents in Vahivat Case
No.35 of 2015 filed by Respondent No.3 before the Tahsildar,
Dindori, District Nashik. In the said proceedings, Respondent No.3
claimed that he had a right of Vahivat over the road in question
and sought removal of the alleged obstruction in using the said
road. For convenience, the said proceedings are hereinafter
referred to as the “said Vahivat case”. Agricultural land bearing
Gat No.415 situated at Mouje Varkheda, Taluka Dindori, District
Nashik was and continues to be the subject matter of the said
Vahivat case and the present Writ Petition. The said property is
hereinafter referred to as the “subject matter property”. In the said
Vahivat case, Respondent No.3 claimed removal of the alleged
obstruction in the alleged East-West Vahivat road running from Gat
No.415 and going towards the North-South village road, as more
particularly shown in the Schedule annexed to the said Vahivat
case. Thus, the right to use the said road as a Vahivat road is the
main dispute between the parties. On 7 December 2015,
Respondent No.3 filed the said Vahivat case before the Tahsildar,
Dindori seeking removal of the alleged obstruction in the said
Vahivat road and seeking permanent injunction against the
Petitioners from obstructing his use of the said road. Respondent
No.3 contended that he was using the road going from the subject
matter property towards the North-South village road for reaching
his agricultural field. According to him, the Petitioners had



                                  2
                                                        wp12314-2018-J.doc


obstructed his use of the said road and he was required to file the
said Vahivat case. The Petitioners appeared in the proceedings and
contested the claim by filing their reply. They denied the alleged
right of Vahivat claimed by Respondent No.3 as well as the alleged
obstruction in the said Vahivat road.

3.    Thereafter,   the   Tahsildar,    Dindori   conducted    a    spot
inspection of the alleged Vahivat road and prepared a spot
inspection Panchanama dated 14 January 2015. The Tahsildar,
Dindori who heard and decided the said Vahivat case allowed the
same by judgment and order dated 18 March 2017. By the said
order, Respondent No.1 directed the Petitioners to remove the
alleged obstruction from the said Vahivat road and granted an
injunction against the Petitioners. Being aggrieved by the said
order passed by Respondent No.1, the Petitioners challenged the
same before Respondent No.2 by filing R.T.S. Revision No.33 of
2017. Respondent No.2, by order dated 8 June 2017, granted
interim stay to the judgment and order passed by Respondent
No.1. Thereafter, the Petitioners filed their written notes of
arguments before Respondent No.2 in the said revision. The Sub-
Divisional Officer, Kalwan, who heard the said Revision, however,
rejected the Revision by judgment and order dated 12 September
2017. Being aggrieved by the said judgment and order passed by
Respondent No.2, the Petitioners have approached this Court by
filing the present Writ Petition.

4.    Mr. Shinde, learned Advocate appearing for the Petitioners,
submitted that in Crop Inspection Case No.70/15, the Tahsildar
had recorded that the Petitioners were in possession of the subject



                                    3
                                                       wp12314-2018-J.doc


matter property. It is submitted that both the proceedings were
before the same Tahsildar. Therefore, the Tahsildar was aware that
Respondent No.3 was not in possession of the said property.
According to the Petitioners, in such circumstances, there was no
reason or cause for Respondent No.3 to file the said Vahivat case,
as there was no obstruction in any Vahivat road as alleged by him.
It was submitted that Respondent No.2 failed to consider that
Respondent No.3 had claimed a right of Vahivat in the said Civil
Suit in respect of a road which was different from the road claimed
by him in the said Vahivat case. Respondent No.3 had not
approached the Court with clean hands. He had suppressed
material facts from the Court and had obtained the order against
the Petitioners by misleading the lower Court. It was submitted
that Respondent No.2 relied upon the Panchanama prepared by
Respondent No.1, though the said Panchanama was vague and did
not show the location or position of the alleged road. It did not
show from which portion of the subject matter property the
alleged road was passing. According to the Petitioners, Respondent
No.2 failed to properly consider the documentary evidence and the
pleadings of the parties and, instead, passed the impugned order
on the basis of assumptions and surmises. Respondent No.1 gave
an opportunity of hearing to both sides and, after considering the
evidence placed before him, recorded the following findings: (a)
the disputed land was situated within the territorial jurisdiction of
the Tahsildar, Dindori and the Tahsildar, Dindori had jurisdiction to
hear the Vahivat case and pass the order; (b) the cause of action
had arisen on 15 November 2015 and the Vahivat case was filed on




                                  4
                                                      wp12314-2018-J.doc


7 December 2015. Therefore, it was filed within six months from
the date of the cause of action and was within limitation; and (c) a
spot inspection was conducted and a Panchanama was prepared on
14 January 2016. From the spot inspection and Panchanama, it
was found that Respondent No.3 did not have any Vahivat road for
using the same for cultivation of his land. The Petitioners had
ploughed the said Vahivat road and were using that portion for
cultivation of watermelon. Marks of the road were found at the
spot. On this basis, Respondent No.1 held that the Petitioners had
obstructed the easementary right of Respondent No.3.

5.    Mr. Gite, learned Advocate appearing for Respondent No.3,
submitted that Gat No.415 was the ancestral property of Applicant
No.1 and Respondent No.3 and that the said property was
partitioned. He submitted that Respondent No.3 had filed a Civil
Suit seeking an injunction so that he was not restrained from using
the said road. The said suit was filed as Regular Civil Suit No.102
of 2016 before the Civil Court and came to be dismissed on a
technical ground. He submitted that from the Crop Inspection
Record, it appeared that Respondent No.3 had been using the right
in question for all these years. However, when the Tahsildar,
Dindori prepared the Panchanama regarding the existence of the
road in question, the Petitioners had blocked the said road, which
was   apparent   from   the   Panchanama.     He   submitted      that
Respondent No.3 had no other road for reaching his agricultural
land except the road in question. He submitted that the
observations made by the Appellate Court in Miscellaneous Civil
Appeal No.48 of 2017, that the road claimed in the proceedings



                                 5
                                                      wp12314-2018-J.doc


under the Mamlatdar’s Courts Act, 1906 and the right of way
claimed in the Civil Suit were different, were made during the
pendency of the present Petition and were not available before the
Sub-Divisional Officer when he passed the impugned order. He,
therefore, submitted that the present Writ Petition deserves to be
dismissed.

REASONS AND FINDINGS:

6.   I have considered the submissions made by Mr. Shinde,
learned Advocate for the Petitioners and Mr. Gite, learned
Advocate for Respondent No.3.

7.   At the beginning, it is necessary to keep in mind that the
jurisdiction under Section 5 of the Mamlatdars’ Courts Act is a
summary jurisdiction. It is provided for giving immediate relief
when a person is unlawfully disturbed or obstructed in using a
road or customary way. Therefore, the power under this provision
is connected with a road or customary way which was existing and
with the obstruction caused to such existing road or way. While
exercising this power, the Mamlatdar is not expected to make or
create a new road. Section 5(2) of the Act gives power to the
Mamlatdar, where a person is disturbed or obstructed “in the use
of roads or customary ways thereto”, to grant an injunction against
the person causing such disturbance or obstruction. Section 5(3)
provides that “No suit shall be entertained by a Mamlatdar’s Court
unless it is brought within six months from the date on which the
cause of action arose.” Section 5(4) provides that, in case of
obstruction, the cause of action is considered to have arisen on the




                                 6
                                                      wp12314-2018-J.doc


date when the “impediment, disturbance or obstruction, or the
attempted impediment or disturbance or obstruction, first
commenced.” Thus, while considering a road case under Section 5,
the Mamlatdar has first to find out which particular road is
claimed by the Plaintiff. Thereafter, it has to be seen whether that
particular road was in existence and was being used as a road or
customary way. Thereafter, it has to be seen whether the
Defendant caused obstruction to that road. The date on which
such obstruction first started is required to be found for
considering whether the proceedings were filed within six months
as required under Section 5(3) and Section 5(4).

8.   This requirement goes to the basic jurisdiction of the
Mamlatdar. A person may require a road for going to his
agricultural land. But only because such requirement is there, the
Mamlatdar cannot select any convenient route and direct the
adjoining landholder to give passage over that route. The
proceedings under Section 5 are concerning an existing road or
customary way and obstruction to such existing road or way.

9.   In a proceeding under Section 5 of the Mamlatdars’ Courts
Act, 1906, the main question which is required to be seen is
whether the person claiming the right is able to show that there
was an existing “road or customary way” and whether the other
side has caused obstruction to that road or way. The Mamlatdar is
not required to create a new road or give a new right of way. The
proceedings under Section 5 are concerning an existing road or
customary way.




                                 7
                                                       wp12314-2018-J.doc


10.   Mr. Gite has submitted that the road was being used for
many years and that Respondent No.3 has no other road for
entering his agricultural land. These submissions are relevant and
can be considered. But these facts do not answer the main
question under Section 5. The fact that there is no other
convenient access does not prove that the particular customary
way claimed in the proceedings was existing. The first question
remains whether the road claimed by Respondent No.3 was
existing and was being used before the alleged obstruction. The
distinction between an existing road and a request for a new road
has been explained by this court in Vimal Bhausaheb Nabde vs The
Sub Divisional Officer and others in Writ Petition No. 5074 of 2022
decided on 4 August, 2025. In paragraph 34, the Court observed:

      “There are two regimes regulating right of way prevailing in
      the State of Maharashtra. One is under Section 5 of the
      Mamlatdars’ Courts Act, which enables a Mamlatdar to order
      removal of obstruction on an existing road, if the suit is filed
      within a period of six months from the date of obstruction.
      Apart from this there is another provision under Section 143
      of the Maharashtra Land Revenue Code, under which the
      Tahsildar is authorized to grant a new road over boundaries
      of agricultural lands. Whereas, the jurisdiction under the
      Mamlatdars’ Courts Act is to order removal of obstruction
      over existing roads, jurisdiction under Section 143 of the
      M.L.R. Code is to grant a new right of way over boundaries
      of agricultural lands. However, when a suit is filed under
      Section 5(2) of the Act, the Mamlatdar cannot grant right of
      through fare over a road which is not previously in
      existence.”
11.   The same judgment states in paragraph 35:




                                  8
                                                             wp12314-2018-J.doc


      “Right of way over a property of another person is pre-
      existing civil right of easement. This right is not created for
      the first time either under the Mamlatdars’ Courts Act or
      under the Maharashtra Land Revenue Code. This is pre-
      existing right of easement.”
12.   These observations show the limited nature of the power
under Section 5. The Mamlatdar has to examine whether an
existing road or customary way was obstructed. The power under
Section 5 cannot be used for making a road for the first time.

13.   For proceedings under Section 5 concerning a road or
customary way, the following principle is required to be kept in
mind. There is no one particular document which in every case is
required to be produced for proving existence of a road. The entire
material has to be considered together. However, where the road is
disputed, the record should contain material from which the
particular road can be identified. Such material may include
revenue   maps,    cadastral   or       Gat   maps,   TILR     or    DSLRO
measurement, relevant revenue entries, spot panchnama, earlier
statutory orders concerning the same road, relevant civil court
records, photographs and reliable oral evidence. The authority has
to consider whether the road existed and whether that existing
road was obstructed. The Tahsildar, while conducting the inquiry,
shall keep in mind the principle stated in Shrikrishna Dane:

      “What the Mamlatdar is required to see is that there exists a
      way or a customary way in use, to grant the relief.”

14.   The Tahsildar shall keep in mind the principle stated in
Gopalrao Deshmukh:




                                    9
                                                       wp12314-2018-J.doc


      “For issuing injunction what Mamlatdar under the
      Mamlatdar's Courts Act has to see is whether there exists any
      road by which a landholder can have access to his land and
      whether obstruction was caused to the enjoyment of this
      road.”
15.   These observations show that existence of the particular road
and obstruction to that road are matters which have to be
considered on the basis of the evidence.

16.   The revenue maps and land records can be relevant material
for finding whether such road was existing. The following
documents may be relevant: (i) Village map. (ii) Cadastral map.
(iii) Gat map or measurement map. (iv) Map prepared by the
District Superintendent of Land Records or TILR/DSLRO. (v)
Record showing a road, shivrasta, pandhan, cart road or customary
way. (vi) 7/12 extracts, where the entries or area description
indicate the existence of a road. (vii) Other revenue records
showing the road as a separate strip or passage.

17.   In Gopalrao Baliramji Deshmukh v. Sopan Gulabrao
Deshmukh in Writ Petition No. 4806 of 2020 decided on 30 July
2021, this court considered the panchnama, the sketch map
prepared by the Tahsildar, the 7/12 extract and the oral evidence
together. The Court noticed that the 7/12 extract showed the total
area of the concerned Gat number after excluding the road. This
was considered as supporting material regarding existence of the
road. Therefore, merely producing a 7/12 extract may not in every
case be sufficient to finally establish the road. But if the entry in
the 7/12 extract is supported by the map and other material, it can
become an important piece of evidence.


                                 10
                                                       wp12314-2018-J.doc


18.   The spot panchnama can have important value in a
proceeding under Section 5. A properly conducted spot inspection
and panchnama may show the physical existence of the road, its
approximate width and direction, the Gat numbers through which
it passes, signs showing its earlier use and whether persons or
agricultural vehicles can use it. It can show where the alleged
obstruction is situated and what is the nature of that obstruction.

19.   In Dattatray Kondaji Dongre v. Dattatray Dagadu Lohate i n
Writ Petition No. 661 OF 2024 decided on 13 March 2024, this
court considered the finding regarding existence of a motorable
road where the Circle Officer had prepared a panchnama in the
presence of independent panchas. The Court accepted that the
findings recorded by the authorities were based upon material in
the form of the panchnama. The presence of the opposite party at
the time of the spot inspection and preparation of the panchnama
can be relevant. In Gopalrao Deshmukh, the Court noticed that the
petitioners were present when the panchnama was prepared.

20.   A survey or measurement map prepared by the competent
Land Records authority can be important evidence. In Chhagan
Sarjerao Garad vs The State Of Maharashtra, Writ Petition No. 632
of 2024 decided on 6 February, 2024, there was a map prepared by
the Deputy Superintendent of Land Records. This Court considered
that map along with the other material and accepted the finding
regarding the existence of a road passing between the concerned
Gat numbers. Therefore, where the main dispute is about the exact
place through which the road is passing, a certified measurement
map can provide better assistance than only oral statements that



                                 11
                                                       wp12314-2018-J.doc


there was a road at the place.

21.   An earlier order passed under Section 143 of the
Maharashtra Land Revenue Code can become relevant where it
concerns the same road. In Anandrao Ishwar Dhyagude v.
Bhaganna Laxman Pandhre in Writ petition No. 12392 of 2022
decided on 23 January 2024, the Tehsildar had earlier passed an
order under Section 143 of the Maharashtra Land Revenue Code
declaring existence of the road. This court held:

      “Once statutory authority grants declaration of existence of
      road, such declaration is binding on all the parties.”
22.   This Court held that existence of such order was sufficient
for arriving at a finding regarding existence of the road and it was
not necessary to produce material for proving existence of the
road. However, such order must relate to the same road and the
same location. An order concerning some other road cannot be
treated as proof of the road which is in dispute in the proceedings.

23.   Earlier proceedings before revenue or other authorities can
be relevant, particularly where the same road was considered and
recognized earlier. Such material may include earlier Section 143
proceedings, orders passed by the Tahsildar or Sub-Divisional
Officer, measurement proceedings, road demarcation proceedings,
proceedings regarding encroachment and government records
recognizing a shivrasta or public road. But the earlier proceeding
has to be connected with the road which is in dispute. If the earlier
proceeding relates to another road or another route, such
proceeding cannot be relied upon for establishing the road in the




                                 12
                                                      wp12314-2018-J.doc


present case.

24.   The judgment or decree of a Civil Court, report of the Court
Commissioner or map prepared in a civil proceeding may be
relevant where the same property and the same road or way were
involved. In Shrikrishna Sheshrao Dane and anr vs Vasantrao
Ramrao Tayde and another on 20 March 2017, the Court
considered the plaint map and the report of the Court
Commissioner along with the oral evidence and found that
existence of the way had been established. The value of such
earlier material would depend upon the facts of that proceeding. It
would be necessary to see whether the parties had an opportunity
to contest the matter and whether the document or map in fact
relates to the same route which is now claimed before the
Mamlatdar.

25.   Photographs, old maps, revenue records and statements of
witnesses can be considered for finding whether the road was
being used for a long period. This is relevant because Section 5
concerns an existing road or customary way. It is not necessary in
every case that the road should be a constructed tar road. A village
pathway, agricultural access road, cart road or other established
passage may constitute a road or customary way depending upon
the evidence. This court has stated that what the Mamlatdar has to
see is whether: “there exists a way or a customary way in use” and,
if such way exists, whether obstruction has been caused to it.

26.   Oral evidence can be given and considered in such
proceedings. The witnesses may give evidence about how long the




                                 13
                                                    wp12314-2018-J.doc


road was in existence, who was using it, where the road started
and ended, its approximate width, whether agricultural vehicles
were using it, whether the claimant was regularly using it and
when the alleged obstruction was caused. However, oral evidence
has to be considered along with the other material. Where the
statements of the witnesses are supported by the physical
condition at the spot, revenue records, maps and panchnama, such
evidence can be relevant. In Gopalrao Deshmukh, the Court
considered the evidence of the witnesses along with the
panchnamas, sketch map and 7/12 extract.

27.   Photographs showing an old track, wheel marks, openings in
the boundary, road surface, existing passage, obstruction or
leftover of an earlier road can provide supporting material.
However, a photograph shows the condition of the place only on
the date when it was taken. It may not establish that the road was
existing for a long period before the alleged obstruction.
Therefore, photographs would be more relevant when they are
considered along with the panchnama, survey or measurement
map and the evidence of witnesses.

28.   Where the alleged road is a government road, village road or
a road which was developed under a government scheme, the
relevant government records can be important. Such records may
include Gram Panchayat records, Village Form records, PWD
records, Zilla Parishad records, road development records,
sanctioned road plans, records concerning Pradhan Mantri Gram
Sadak Yojana and government maps. In Chhagan Sarjerao Garad,
this Court considered material showing existence of a road which



                                14
                                                       wp12314-2018-J.doc


was upgraded under the Pradhan Mantri Gram Sadak Yojana.

29.   The evidence in a proceeding under Section 5 should
establish two different things. First, that the particular road or
customary way was in existence. Second, that the other party
caused obstruction to that existing road or customary way. A
person cannot approach the Mamlatdar under Section 5 merely
because he requires a convenient access to his agricultural land
and seek creation of a new road over another person's land. The
power under Section 5 is to deal with obstruction to an existing
road or customary way. It is not a power to create a new road.
Therefore, while deciding such proceedings, the Mamlatdar has to
first identify the particular road claimed by the person, consider
whether that road was existing and being used, and thereafter
consider whether the opposite party has obstructed that particular
road. The evidence regarding the road and the evidence regarding
obstruction have to be considered and thereafter together, on the
basis of the entire material available on record.

30.   This court in Shrikrishna Sheshrao Dane, in paragraph 6, has
stated as under:

      “Sub-Section (2) of Section 5 of the Mamlatdar Courts Act,
      1906, empowers the Mamlatdar to pass an order of
      injunction against the persons prohibiting the use of road or
      customary way and to remove any obstruction or
      impediment created therein. What the Mamlatdar is required
      to see is that there exists a way or a customary way in use, to
      grant the relief.”
31.   Thereafter, the Court considered the plaint map, the report
of the Court Commissioner and the oral evidence and recorded in



                                 15
                                                      wp12314-2018-J.doc


paragraph 7:

      “After going through the evidence of this witness PW-4, the
      plaint map, the report of the Court Commissioner at Exh.67,
      I find that the existence of way through Gat Nos. 12 and 13
      to approach Gat Nos. 10 and 11 has been established.”
32.   Thus, this decision shows that the particular road or way has
to be identified from the material placed before the authority and
its existence has to be established. Merely saying that some access
is available or that some road is there would not be sufficient. The
same principle is found in Gopalrao Baliramji Deshmukh. In
paragraph 9, this court considered the panchnama, sketch map,
7/12 extract and oral evidence. The Court noticed that the
panchnama showed existence of the road, the Tahsildar had
prepared a sketch map showing the direction of the road and the
7/12 extract supported its existence. The Court observed that this
material “clearly indicates the existence of road.” In paragraph 10,
the Court stated:

      “For issuing injunction what Mamlatdar under the
      Mamlatdar's Courts Act has to see is whether there exists any
      road by which a landholder can have access to his land and
      whether obstruction was caused to the enjoyment of this
      road.”
33.   In paragraph 11, the Court observed:

      “The argument that, it was not necessary for the Mamlatdar
      to again visit the spot and draw panchanama was totally
      uncalled for, cannot be accepted. Mamlatdar is required to
      pay visit to the spot and draw panchanama by virtue of
      Section 19(2) of the Mamlatdar's Courts Act.”




                                 16
                                                        wp12314-2018-J.doc


34.   This decision is relevant because the finding regarding the
road was not based only on the panchnama. The panchnama,
sketch map, revenue record and oral evidence were considered
together.

35.   Section 19(2) of the Act shows the manner in which the
inquiry can be made by the Mamlatdar. After giving proper notice
to the parties and, where required, in their presence, the
Mamlatdar can call and examine other persons as witnesses. He
can call for documents which have not been produced by either
side where such documents are necessary in the interest of justice.
He can personally inspect the property in dispute. After such
inspection, he is required to record a memorandum of the relevant
facts noticed at the spot. Such memorandum becomes part of the
record. Therefore, when the identity, location or actual existence of
the road is disputed, the spot inspection becomes relevant. The
spot has to be examined with reference to the case made in the
plaint. As far as possible, the route should be shown by proper
measurement or sketch. Its starting point, ending point, direction
and the lands through which it passes should be understood from
the record. The place and nature of the alleged obstruction should
be shown.

36.   The following material is relevant and may be considered
while deciding proceedings under Section 5 of the Mamlatdars’
Courts Act:

      (i)     The plaint and its description of the particular road or
      customary way, including its starting point, ending point,




                                   17
                                                 wp12314-2018-J.doc


direction, width and the lands or Gat numbers through
which it is claimed.

(ii)    Village map, cadastral map, Gat map and other
revenue maps showing the existence and location of the
road.

(iii) Measurement maps or reports prepared by TILR,
District Superintendent of Land Records or other competent
Land Records authority.

(iv) 7/12 extracts and other revenue records showing the
road, shivrasta, pandhan, cart road or customary way.

(v)     Earlier orders passed under Section 143 of the
Maharashtra     Land    Revenue   Code   or    other   statutory
proceedings concerning the same road.

(vi) Spot panchnama recording the physical existence,
direction, width, location and condition of the road and the
nature and place of the alleged obstruction.

(vii) Sketch or map prepared during the spot inspection
showing the road with reference to the boundaries of the
concerned Gat numbers.

(viii) Photographs or other material showing the physical
condition of the road, obstruction, cultivation, track marks or
other signs of its earlier use.

(ix) Oral evidence regarding the existence of the road, its
period of use, the persons using it, the manner of use and
the date on which the alleged obstruction was first caused.



                             18
                                                       wp12314-2018-J.doc


      (x)     Documents and evidence showing long-standing use of
      the particular road or customary way.

      (xi) Government or local authority records, including Gram
      Panchayat, village forms, Zilla Parishad, Public Works
      Department or sanctioned road plans, wherever relevant.

      (xii) Earlier civil Court proceedings, judgments, orders,
      maps or Commissioner's reports concerning the same road,
      property or route.

      (xiii) Documents showing the possession and cultivation of
      the concerned Gat numbers, including crop inspection
      records, where relevant to the identity or use of the road.

      (xiv) Evidence relating to the exact date on which the
      obstruction or attempted obstruction first commenced, for
      determining the limitation under Section 5(3) and Section
      5(4) of the Act.

      (xv) Any other relevant documentary, oral or physical
      evidence which helps in identifying the particular existing
      road or customary way and the alleged obstruction to that
      road.

37.   In the present case, Respondent No.3 claims an East-West
Vahivat road from Gat No.415 towards the North-South village
road. The Petitioners dispute existence of such road. They say that
the road claimed by Respondent No.3 before the Civil Court was
different from the road claimed before the Mamlatdar. Respondent
No.3 disputes this submission and says that the road in question is




                                 19
                                                       wp12314-2018-J.doc


the same road which he has been using for going to his
agricultural land. Thus, the dispute is not merely regarding access
to the agricultural land. The identity of the road is disputed.
Unless the road claimed before the Mamlatdar is first identified, it
would not be safe to hold that the Petitioners have obstructed that
road.

38.     The Petitioners have relied upon Crop Inspection Case
No.70/15 and the finding recorded therein that they were in
possession of the subject property. I do not find that such finding
can bring the proceedings under Section 5 to an end. Possession of
Gat No.415 and use of a road for reaching an agricultural field are
two different things. It is possible that one person is in possession
of land and another person claims to use a road passing through or
along that land. Therefore, the finding regarding possession in the
Crop Inspection Case is relevant material. But it cannot prove that
Respondent No.3 had no existing road or customary way. At the
same time, the submission of the Petitioners cannot be ignored.
Their case is that the same Tahsildar had dealt with both
proceedings. Therefore, the Crop Inspection Record and the
findings in that proceeding are relevant documents and should be
considered. It has to be seen from the original record whether
those documents give any information regarding the identity of the
road, possession of the parties and the manner in which
Respondent No.3 was reaching his agricultural land. This has to be
decided from the record.

39.     The submission that Respondent No.3 had claimed a
different road before the Civil Court is relevant. If the two



                                 20
                                                      wp12314-2018-J.doc


proceedings concern different roads, a statement or finding
concerning one road cannot establish existence of another road.
Therefore, the two roads have to be compared by examining the
plaint, maps, boundaries, Gat numbers and reliefs claimed in both
proceedings. Respondent No.3 has relied upon Regular Civil Suit
No.102 of 2016 and has stated that the suit was dismissed on a
technical ground. If the suit was dismissed on a technical ground,
such dismissal cannot be considered as a finding that the road
exists. At the same time, it cannot be treated as a finding that the
road does not exist. Therefore, the actual judgment and order in
that suit has to be examined to know what was decided and what
was not decided.

40.   The same position applies to Miscellaneous Civil Appeal
No.48 of 2017 referred to by Mr. Gite. Respondent No.3 states that
the decision in that appeal was delivered during pendency of the
present Petition, and it was not available before Respondent No.2
when the impugned order dated 12 September 2017 was passed.
Respondent No.2 cannot be blamed for not considering a decision
which was not available before him at that time. However, in the
fresh inquiry after remand, the certified copy of that decision can
be produced before the Tahsildar. If the decision concerns the same
parties or way, its effect will have to be considered after giving
both sides opportunity to make their submissions. If it concerns a
different road, it cannot be used for proving the road involved in
the present proceedings.

41.   The Petitioners have submitted that the panchnama is vague.
This submission requires consideration. The order of Respondent



                                 21
                                                     wp12314-2018-J.doc


No.1 states that marks of a road were found at the spot and that
the Petitioners had ploughed the road and were using that portion
for cultivation of watermelon. However, from the material placed
before this Court, it is not clear how those marks were connected
with the particular East-West road described in the plaint. The
starting point, ending point, width and exact position of the
alleged road with reference to the Gat boundaries are not shown.

42.   In the present case, the Tahsildar should find out whether
there is any earlier order under Section 143 of the Maharashtra
Land Revenue Code concerning the disputed road in Gat No.415. If
such order exists, its certified copy, map and connected record
should be called for and considered. If there is no such order, the
claim will have to be considered on the basis of other evidence
available on record. The revenue records require proper
consideration. These may include the village map, cadastral map,
Gat map, measurement map, maps prepared by TILR or District
Superintendent of Land Records, revenue entries showing road,
shivrasta, pandhan or cart road, 7/12 extracts and other village or
government records. A 7/12 extract alone may not finally decide
the issue. But if its entry corresponds with the map, measurement
and physical condition of the land, it can become relevant
supporting evidence. The spot inspection has to be done in a
proper manner. If the road is still visible, its approximate width,
direction, starting point, ending point, adjoining Gat numbers,
boundary position, physical marks of use and place of alleged
obstruction should be recorded. If wheel marks, an old passage,
openings in the boundary, remains of road or other physical signs



                                22
                                                      wp12314-2018-J.doc


are found, they should be mentioned. If the route is no longer
visible because the land has been cultivated, that fact should be
recorded. In such a situation, older records and other evidence will
have to be considered.

43.   Both sides should receive notice of the spot inspection and
should be permitted to remain present. Independent panchas may
be associated. The sketch prepared at the spot should, as far as
possible, show the position of the road in relation to the Gat
boundaries. If the exact route or boundary is disputed, assistance
of the competent Land Records authority for proper measurement
may be considered.

44.   Oral evidence has to be considered in this background.
Witnesses may speak about the existence of the road, the period
for which it was used, the persons who used it, the direction of the
road, the manner of its use and the time when the alleged
obstruction was first caused. Such oral evidence, however, has to
be checked with the physical and documentary material. The
statement of an interested witness cannot be treated as conclusive
only because it supports one party. At the same time, a witness
cannot be rejected only because he belongs to the same village.
The entire evidence has to be considered. Photographs, if
available, may be considered. They may show the condition of the
spot, track, obstruction, cultivation over the alleged road, wheel
marks, boundary openings or remaining signs of earlier use. But
photographs normally show the condition of the place when they
were taken. They may not establish how many years the road
existed before that date. Therefore, photographs have to be



                                 23
                                                      wp12314-2018-J.doc


considered along with the panchnama, maps, revenue records and
oral evidence. Government or local authority records, if available,
should be considered. If the alleged road is shown in Gram
Panchayat records, village forms, Zilla Parishad records, Public
Works Department records or any sanctioned road plan, such
records may be relevant for deciding the identity and existence of
the road. In Chhagan Sarjerao Garad, the material regarding the
existing road and the Land Records map was considered together
in the background of subsequent development of that road.

45.   Therefore, there is no single document which in every case is
compulsory for proving the existence of a road. The whole
material has to be considered together. But where the identity of
the road is disputed, it would not be safe to decide the matter
merely on a general statement that “there are marks of road” or
that the claimant has no other access. The evidence has to relate to
the particular road which is the subject matter of the proceedings.

46.   There is one more difficulty in the present matter which
requires consideration. Paragraph 5 of the material placed before
this Court refers to the spot inspection panchnama dated 14
January 2015, whereas paragraph 10 refers to the same
panchnama as dated 14 January 2016. The Vahivat case was filed
on 7 December 2015. Therefore, the date mentioned in paragraph
5 cannot be accepted without seeing the original record. It appears
to be an inconsistency in the material placed before the Court.
However, this Court cannot assume which date is correct. The
panchanama has to be examined by the Tahsildar. If the correct
date is 14 January 2016, the same should be recorded. If the



                                 24
                                                     wp12314-2018-J.doc


original document bears some other date, the same should be
clarified in the order. This difference in date is relevant because
the date of the alleged obstruction and the steps taken thereafter
are part of the inquiry under Section 5. Limitation cannot be
decided only by repeating the date stated in the plaint. The
authority has to find out when the disturbance or obstruction to
the particular road first commenced. For this purpose, the evidence
of the parties, panchnama, complaints, notices, applications,
revenue records and other relevant material can be considered.

47.   Section 19(1)(c) requires the Mamlatdar to examine:

      “(1) whether the plaintiff or any person in his behalf is 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 months before the suit was filed.”
48.   In my view, the orders passed by the authorities below do
not contain a clear finding about the identity of the road. This is
particularly so because the Petitioners have contended that the
road referred to in the civil proceedings was different from the
road claimed before the Mamlatdar. There is no clear connection
between the road described in the proceedings and the physical
road said to have been found at the spot by reference to a proper
map or measured position. Therefore, the finding regarding
obstruction is based upon a matter which requires examination.




                                25
                                                      wp12314-2018-J.doc


49.   I am unable to accept the submission of the Petitioners that
the entire claim of Respondent No.3 must fail merely because the
Petitioners were found to be in possession of Gat No.415. As
stated, possession of land and use of a road are different matters.
At the same time, the submission of Respondent No.3 that he had
been using the road for a long period and that there was no other
road cannot be treated as sufficient proof. The statute requires
proof of existence and use of the particular road or customary way
and obstruction to that particular road. Therefore, the submissions
made by both sides have to be considered to the extent stated
above. The Petitioners are justified in saying that the identity and
exact location of the road require examination. Respondent No.3 is
correct to the extent that absence of a formal government road
entry or the fact that the Petitioners are in possession of the
agricultural land cannot defeat a claim if the evidence proves an
existing customary way. These questions have to be decided on the
evidence.

50.   In these circumstances, I do not find it proper to finally
decide the dispute merely by choosing between the two versions
placed before the authorities. The dispute involves questions
regarding existence, identity, location, earlier use and obstruction
of the alleged road. The Mamlatdar is the authority which has to
make this inquiry in the first instance. The Act gives the
Mamlatdar power to inspect the property and call for necessary
evidence. This court has noticed the difficulties arising in such
proceedings under the Mamlatdars' Courts Act. In paragraph 33 of
Vimal W/o Bhausaheb Nabde, it is observed:



                                26
                                                       wp12314-2018-J.doc


      “Of late many petitions are coming up before this Court
      arising out of provisions of Mamlatdars' Courts Act. Whereas
      the provisions of Mamlatdars' Courts Act are statutory
      provisions, which are meant to give immediate urgent reliefs
      to villagers with respect to the matters covered under
      Section 5 of the Act, it is found that the procedural
      requirements of the Act are seldom followed.”
51.   The Court observed:

      “Most of the times, the matters are required to be remanded
      back to decide the case by following procedural formalities.
      These procedural formalities are held to be mandatory.”
52.   This observation is relevant to the present matter because
the question before this Court is whether the inquiry made by the
authorities below was complete enough to support the order
passed against the Petitioners. On the material available, I find that
the answer has to be in the negative. Respondent No.2 confirmed
the order of Respondent No.1 without identifying the particular
road with reference to the material on record. The specific
objection of the Petitioners regarding the different roads claimed
before the Civil Court and before the Mamlatdar required a
separate finding. The decision in Miscellaneous Civil Appeal No.48
of 2017 can now be considered in the fresh inquiry, subject to its
contents and relevance. The difference regarding the date of the
panchnama requires verification from the original record. I do not
propose to record any final finding at this stage that the road exists
or that it does not exist. Such a finding on the present material
would mean deciding disputed facts without proper inquiry. In my
view, the proper course is to set aside the orders and send the
matter back to the Tahsildar, Dindori for fresh inquiry. The remand



                                 27
                                                       wp12314-2018-J.doc


is not intended to permit Respondent No.3 to make an entirely
new case. The inquiry shall remain confined to the road and relief
claimed in the proceedings. The Petitioners shall be entitled to rely
upon the documents and objections which are relevant to the
identity, existence, use and alleged obstruction of that road.

53.   While making the fresh inquiry, the Tahsildar shall consider
the material questions arising under Sections 5 and 19 of the Act.
In particular, it shall be examined whether the particular East-West
road described by Respondent No.3 and shown as approaching the
North-South village road was in existence before the alleged
obstruction; where exactly the road was situated; through which
Gat numbers or boundaries it passed; whether Respondent No.3
was using that particular road; whether the Petitioners caused
obstruction to that particular road; and when such obstruction first
commenced. For this purpose, the Tahsildar shall consider,
wherever relevant from the record, the village map, cadastral map,
Gat map, TILR or DSLRO measurement map, 7/12 extracts,
revenue records showing road, shivrasta, pandhan or customary
way, previous orders under Section 143 of the Maharashtra Land
Revenue Code, earlier revenue orders concerning the same road,
the judgment and record of Regular Civil Suit No.102 of 2016, the
judgment or order in Miscellaneous Civil Appeal No.48 of 2017,
panchnamas, oral evidence, photographs and other relevant
material. If the exact location of the road is disputed, the Tahsildar
shall consider obtaining proper measurement from the competent
Land Records authority so that the route can be identified with
reference to the boundaries of Gat No.415 and adjoining Gat



                                 28
                                                        wp12314-2018-J.doc


numbers. If such measurement is undertaken, both sides shall be
given notice and an opportunity to remain present. The map or
measurement report shall form part of the record and both sides
shall be permitted to make their submissions upon it.

54.   The Tahsildar shall conduct a fresh spot inspection after
giving proper notice to both sides. The spot panchnama shall
contain sufficient details for identifying the alleged road. As far as
possible, it shall mention the direction, width, starting point,
ending point, adjoining Gat numbers, physical signs of earlier use
and the exact place and nature of the alleged obstruction. The
sketch prepared at the spot should correspond with the description
given in the panchnama. The Tahsildar shall verify the
panchanama relied upon in the proceedings and record its correct
date. The difference between 14 January 2015 and 14 January
2016 shall not remain unexplained. The issue of limitation shall be
considered independently. The date of 15 November 2015 stated
by Respondent No.3 as the date of cause of action shall be
examined with reference to the oral and documentary evidence.
The question to be decided is when the alleged obstruction to the
particular road first commenced. Only after deciding this question
can the requirement of Section 5(3) be properly considered. The
Petitioners shall be permitted to produce Crop Inspection Case
No.70/15 and the relevant Crop Inspection Record. The Tahsildar
shall consider what bearing those records have upon possession of
Gat No.415, use of the road and identity of the alleged route. The
said record shall not be treated as conclusive in favour of either
party without examining its actual contents and relevance.



                                 29
                                                       wp12314-2018-J.doc


55.   Respondent No.3 shall be permitted to produce the
documents relied upon by him to show long-standing use of the
road. If he relies upon the fact that there is no alternate road, that
circumstance may be considered. However, absence of an alternate
road cannot result in creation of a new road under Section 5. The
existing road or customary way has first to be established. The
evidence of witnesses shall be considered along with the maps,
revenue records and physical evidence. If any witness states that
the road was being used for several years, the Tahsildar shall
consider whether such statement is supported by and is consistent
with the documentary material. The final finding should be based
upon the entire material and not upon one document or one
statement considered separately.

56.   The Tahsildar shall keep in mind the difference between the
jurisdiction under Section 5 of the Mamlatdars’ Courts Act and the
power under Section 143 of the Maharashtra Land Revenue Code.
If the material shows that Respondent No.3 is seeking a route
which was not previously existing, relief under Section 5 cannot be
granted merely because access to his land is required. If, however,
an existing road or customary way is proved and obstruction to
that existing route is proved within the statutory period, the claim
shall be considered in accordance with Section 5.

57.   The above directions are not intended to decide what
conclusion the Tahsildar should reach. This Court is not recording
any final finding regarding the existence or non-existence of the
disputed road, the alleged right of Vahivat, the alleged obstruction
or the issue of limitation. These matters are left open for fresh



                                   30
                                                       wp12314-2018-J.doc


consideration on the basis of the evidence. I find that the judgment
and order dated 12 September 2017 passed by Respondent No.2 in
Vahivat Revision No.33 of 2017 cannot be sustained in its present
form. The order dated 18 March 2017 passed by Respondent No.1
requires reconsideration because the basic factual questions
concerning the identity and existence of the road have not been
examined with sufficient clarity for a proceeding under Section 5.

58.   The Petition deserves to be allowed to the above extent. The
impugned orders are required to be set aside, and the matter is
required to be remanded to the Tahsildar, Dindori for fresh inquiry
in accordance with law. Both sides shall be given reasonable
opportunity to produce documents, lead evidence and make their
submissions. The Tahsildar shall decide the matter independently
on its own merits. The observations made in this judgment, except
the legal parameters governing the inquiry, shall not be treated as
a finding in favour of either party.

59.   For the reasons stated above, I am satisfied that remand of
the matter is necessary in the interest of justice. The matter shall
be decided afresh by the Tahsildar after following the above
parameters and after considering all relevant material produced by
both sides.

60.   In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:

      (i)     The Writ Petition is allowed;

      (ii)    The judgment and order dated 12 September 2017
      passed by Respondent No.2 in Vahivat Revision No.33 of



                                   31
                                                  wp12314-2018-J.doc


2017 is quashed and set aside;

(iii) The judgment and order dated 18 March 2017 passed
by Respondent No.1 in Vahivat Case No.35 of 2015 is
quashed and set aside;

(iv) Vahivat Case No.35 of 2015 is restored to the file of the
Tahsildar, Dindori for fresh inquiry and decision in
accordance with law and in the light of the observations
made in this judgment;

(v)   The Tahsildar shall give proper notice to both sides and
permit them to produce relevant documents and evidence.
The Tahsildar shall conduct fresh spot inspection wherever
necessary. If the identity or location of the road is disputed,
appropriate measurement or map from the competent Land
Records authority shall be considered;

(vi) The Tahsildar shall record specific findings regarding
the existence and identity of the alleged road, its prior use,
the alleged obstruction and the date on which such
obstruction first commenced;

(vii) The Tahsildar shall verify the panchanama and clarify
the discrepancy regarding its date shown as 14 January 2015
and 14 January 2016;

(viii) The   Tahsildar   shall    decide    the     proceedings
independently on the basis of the material and submissions
placed before him and shall not be influenced by the
conclusions recorded by Respondent No.1 or Respondent




                           32
                                                 wp12314-2018-J.doc


No.2 which have been set aside by this Court;

(ix) The fresh inquiry shall, as far as possible, be completed
within four months from the date of receipt of the record
and a copy of this order;

(x)   All contentions of the parties on merits are kept open
for consideration by the Tahsildar in the fresh inquiry;

(xi) There shall be no order as to costs.


                                       (AMIT BORKAR, J.)




                            33