Gujarat High Court
Kanbi Ravtabhai Dharmabhai vs Lhs Of Lrs Of Decd. Kanbi Dhanabhai … on 9 February, 2026
NEUTRAL CITATION
C/SCA/7399/2025 CAV JUDGMENT DATED: 09/02/2026
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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/-
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Approved for Reporting Yes No
No
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KANBI RAVTABHAI DHARMABHAI & ANR.
Versus
LHS OF LRS OF DECD. KANBI DHANABHAI RAMABHAI & ORS.
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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
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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
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