Gujarat High Court
Sodha Nagajibhai Hemabhai vs Chauhan Madevabhai Hamirbhai on 25 February, 2026
NEUTRAL CITATION
C/SCA/10104/2024 CAV ORDER DATED: 25/02/2026
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Reserved On : 17/02/2026
Pronounced On : 25/02/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10104 of 2024
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SODHA NAGAJIBHAI HEMABHAI & ANR.
Versus
CHAUHAN MADEVABHAI HAMIRBHAI & ORS.
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Appearance:
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1,2
MR. NISARG D SHAH(7299) for the Petitioner(s) No. 1,2
MS SURBHI BHATI, AGP for the Respondent(s) No. 4
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 1,2,3
NOTICE SERVED for the Respondent(s) No. 5
==========================================================CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV ORDER
1. By way of filing present petition under Articles
226 and 227 of the Constitution of India, the
petitioners have assailed the order dated 29.12.2023
passed by the Mamlatdar, Vav in the proceedings
initiated under Section 5 of the Mamlatdars’ Courts
Act (it shall hereinafter be referred to as the ‘Act’
for short) and order dated 23.04.2024 passed by the
Deputy Collector, Tharad in revision application,
whereby the order passed by the Mamlatdar has been
upheld.
2. The facts of the case of the petitioners can be
summarized in a nutshell as under:
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2.1. It is the case of the petitioners that the
private respondents herein – original plaintiffs have
preferred a suit under Section 5 of the Act before
the Mamlatdar, Vav, inter alia praying that the
petitioners – original defendants may be restrained
from obstructing the plaintiffs from using the
disputed way which is being used by them since last
many years for the purpose of reaching to their
agricultural field. It is the case of the plaintiffs
that they are the owners and occupiers of land
bearing Survey No.110 (old Survey No.39) situated at
village Joradiyali, whereas, the defendants are the
owners and occupiers of land bearing Survey Nos. 135
Paiki 1 (old Survey No.98/5) and 135 Paiki 2 (old
Survey No.98/5) situated at village Takhatpura and
plaintiffs are using the disputed way which is
passing through the agricultural field of the
defendants. That before about 10 days from the date
of filing the suit, the defendants have obstructed
the plaintiffs from using the disputed way, which is
the only access for ingress and egress to their
agricultural field. The plaintiffs, therefore,
instituted a suit under Section 5 of the Act before
Mamlatdar, Vav, inter alia, praying for permanent
injunction.
2.2. Pursuant to the institution of the suit, the
Mamlatdar, Vav instructed the Circle Officer, TundavPage 2 of 22
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to carry out the Panchnama and accordingly a
Panchnama has been carried out by the Circle Officer
in presence of both the parties. That after
appreciating and considering the materials as well as
documents, the Mamlatdar, Vav has allowed the said
suit and directed the defendants not to obstruct the
plaintiffs from using the disputed way, which is
merged by the defendants with their agricultural
field.
2.3. Being aggrieved by and dissatisfied with the
said order, the defendants – petitioners herein have
filed a revision before the Deputy Collector, Tharad.
However, the said revision also came to be rejected.
Hence, the petitioners have preferred present
petition.
3. Heard learned advocate Mr. Karathiya for the
petitioners, learned advocate Mr. Nishit Gandhi for
private respondents and learned AGP Ms. Surbhi Bhati
for respondent Nos. 4 and 5.
4. Learned advocate Mr. Karathiya for the
petitioners submits that the petitioners are the
original defendants, whereas, private respondents
herein are the original plaintiffs. He submits that
petitioners are the owners and occupiers of land
bearing Survey No.135 paiki 1 (old survey no.98/5),
situated within the periphery of village Takhatpura,
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whereas, respondents are the owners and occupiers of
land bearing Survey No.110, situated within the
periphery of village Joradiyali .
5. Learned advocate Mr. Karathiya further submits
that present petition is filed essentially on two
major grounds; (1) that the suit is filed by the
respondents – original plaintiffs much after the
period of limitation which is prescribed in the Act
itself. He has read the provisions of Section 5(3) of
the Act and submitted that the suit is required to be
filed within a period of six months from the date on
which the cause of action arose. He submits that the
cause of action mentioned in the suit prima facie
seems to be illusory one, as no specific date is
mentioned by the plaintiffs. He submits that the
plaintiffs have come with the specific case that 10
days before the filing of the suit, the cause of
action has arisen. However, the record shows and
suggests quite different story. He submits that
during the course of cross-examination of the
plaintiff, he has very categorically stated that the
disputes have been cropped up by and between the
parties before one to one and half years (12 to 18
months) from the date of institution of the suit and
criminal proceedings have been instituted by the
plaintiffs against the defendants. He submits that
said set of documents and materials available on
record crystallizes the position of fact that on
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15.12.2022 the disputes have been cropped up between
the parties, due to which, a criminal complainant as
well as chapter case came to be registered against
the petitioners by the private respondents, whereas,
suit is filed on 18.07.2023. Therefore, there is
gross delay in preferring the suit and as per the
statutory provisions of the Act itself, if any suit
is filed after lapse of period of six months from the
date on which the cause of action arose, in that
event, the suit is not required to be entertained by
the Mamlatdar. Despite the documents and materials
showing the aforesaid glaring aspects were placed on
record, the Mamlatdar has allowed the suit filed by
the respondents. He further submits that in fact on
the basis of initiation of the proceedings under the
provisions of Section 107 of the Code of Criminal
Procedure, the Executive Magistrate concerned has
recorded the statement of the petitioner No.1,
wherein, he has stated in a very categorical manner
that whatever impediment generated by him for
obstructing the private respondents herein has
already been removed and earlier position of the
field has already been restored by him. The said
statement was recorded on 19.12.2022 and thereafter
the petitioners have not created any impediments upon
the pathway of the private respondents and therefore
by no stretch of imagination it can be said that the
suit proceedings have been initiated within the
prescribed period enumerated in the statute itself.
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He further submits that he has already produced a
copy of map of village Takhatpura which crystallizes
the position of fact that an alternative way is
already in existence, which is used and utilized by
the respondents since last many years. The said way
is already in existence, despite that, with a sole
intent to harass the petitioners, the respondents
have instituted a suit and sought a way from the
middle of the field of the petitioners by creating a
new story. The said fact is also fortified from the
inter se communication made between the TDO, Vav and
Deputy Collector, Tharad. He has drawn the attention
of this Court to a letter dated 03.02.2025 addressed
by the Taluka Development Officer, Vav to the Deputy
Collector, Tharad, inter alia, specifically stating
that the way is already open and no impediment is
created by anyone and the work of tar road is in
progress. Moreover, the way which is claimed by the
plaintiffs is not at all in existence and the said
fact is verified from the village map as well as
village form 7 & 12. He has tendered the said letter
across the Bar, which is directed to be taken on
record. He submits all those facts are clearly found
out from the documents and materials available on
record, despite that, the Mamlatdar has allowed the
suit of the respondents by passing the impugned
order, which was subsequently confirmed by the Deputy
Collector in revision application. Therefore, the
orders passed by the revenue authorities are required
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to be quashed and set aside by allowing present
petition.
6. Learned advocate Mr. Karathiya further submits
that the way mentioned in the map is already open but
instead of using and utilizing the said way, the
respondents are claiming a way from middle of the
field of the petitioners and the said way is not at
all found in the village map and by way of
instituting the suit, respondents have tried to
mislead the authority concerned. He further submits
that for the purpose of opposing present proceedings,
a detailed reply is filed by the respondents,
wherein, they have come with the case that the suit
is preferred well within the time prescribed in the
Act itself by specifically stating that in fact at
earlier point of time, petitioners have tried to
block the pathway of the respondents, due to which,
disputes have been cropped up and ultimately criminal
complaint has been registered and thereafter the said
way was opened.
7. Learned advocate Mr. Karathiya further submits
that in fact the statement of the petitioner No.1 was
recorded by the Executive Magistrate wherein he has
very categorically stated that the earlier position
has already been restored by the petitioners and
thereafter the said way has not been blocked by the
petitioners. He has read the cross-examination of the
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plaintiffs and submitted that in the cross-
examination, the plaintiff has admitted that the
villagers are trying to settle the dispute between
the parties since last one to one and half years.
Thus, the averment made in the memo of the suit that
before about 10 days from the date of filing of the
suit, the cause of action has arisen, is not
believable and therefore solely on this ground, the
suit of the plaintiffs ought to have been dismissed
by the Mamlatdar. He further submits that during the
course of his cross-examination, one of the
plaintiffs has also admitted that there is another
alternative way. However, despite admission on the
part of one of the plaintiffs that before about one
to one and half years, the villagers have tried to
settle the dispute between the parties, by ignoring
the statutory period prescribed for institution of
suit in the Act itself, the Mamlatdar has allowed the
suit. Hence, the said view taken by the Mamlatdar is
against the statutory provisions of the Act itself
and therefore the order passed by the Mamlatdar,
which is confirmed by the Deputy Collector is
required to be set aside.
8. Learned advocate Mr. Karathiya further submits
that another reason for which the suit of the
plaintiffs ought not to have been entertained by the
Mamlatdar is to the effect that at the time of
institution of the suit, the plaintiffs have
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suppressed material facts about filing of a complaint
against the petitioners as well as the fact of
recording of statement by petitioner No.1 before the
Executive Magistrate in the proceedings initiated
against the petitioners under Section 107 and 151 of
the Code of Criminal Procedure. He submits that the
plaintiffs have not disclosed those material facts
only with a sole intent to mislead the revenue
authorities.
9. Learned advocate Mr. Karathiya further submits
that it is well settled that the proceedings which
are initiated under the provisions of the Act are
quasi judicial proceedings where the provisions of
the Civil Procedure Code are not applied in stricto
sensu manner but the mandatory requirement of the
statute is required to be followed in stricto sensu
manner and if the plaintiff failed to mention a
particular date on which the cause of action has
arisen, in that event, the suit is not required to be
entertained solely on the basis of principle of law
of limitation prescribed in the statute itself. The
said timeline is required to be strictly adhered with
by the revenue authority at the time of deciding the
suit. Learned advocate Mr. Karathiya has heavily put
reliance upon Sections 5, 6 and 7 of the Act and
submitted that a specific date about the occurrence
of the cause of action has not been stated in the
memo of the suit and during the course of cross-
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examination, original plaintiff has specifically
admitted that the dispute regarding right of way has
been started before one to one and half years from
the date of institution of the suit itself and
therefore the said admission on the part of one of
the plaintiffs is self-sufficient ground to reject
the suit of the plaintiff. In support of his
submissions, he has heavily put reliance upon the
following decisions of this Court and submitted that
said decisions are squarely applicable to the facts
of the present case.
(1) In Badi Husenbhai Alibhai since Decd. Through
Legal Heirs v. Deputy Collector, reported in
2018(0) AIJEL-HC-240396; and(2) In Patel Somabhai Jesangbhai v. Patel
Nikulbhai Naranbhai, reported on 2022(0) JX
(Guj.) 1513.
10. On the other hand, learned advocate Mr. Nishit
Gandhi appearing for the private respondents –
original plaintiffs has objected present petition
with vehemence and forcefully submitted that orders
passed by the Mamlatdar as well as Deputy Collector
are just, fair and legal and based upon the sound
principle of law and therefore those orders are not
required to be interfered with by this Court. He
submits that the scope of interference of this Court
in the matter of concurrent findings of fact is very
limited. He further submits that so far as the
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contention of the petitioners that TDO, Vav addressed
a letter to the Deputy Collector, Tharad, inter alia,
stating that the way is open and not blocked by any
villagers and in fact the way which is sought for by
the plaintiffs is not at all in existence, is
concerned, he submits that if the Hon’ble Court would
make cursory glance upon the contents of the said
letter coupled with the map of the village, in that
event, it would have been found out that in fact the
contents of the said letter support the case of the
respondents – original plaintiffs. In the said letter
it is specifically stated that from the southern side
of the field of the petitioners, a kachha road, which
was opened by the Mamlatdar by way of passing an
order, is already in existence. There is also a way
in the southern-eastern boundary of the field of the
petitioner which starts from village Takhatpura and
leading towards village Panesada where the
construction work of tar road is going on and on the
eastern side of the road, there exists land bearing
survey No.133 of Harijan Mohanbhai Bhojabhai and
after 7 feet from the road, in souther side of land
bearing Survey No.135 Paiki (land of the
petitioners), land bearing Survey No.134 of the
ownership of Chaudhary Navalben Mulubhai is situated.
Thus, the factual aspects narrated in the letter of
the TDO crystallize the position of fact that on the
southern side of agricultural field of the
petitioners, a road is in existence, which is opened
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by the Mamlatdar by way of passing an order and this
is the precise issue which is pending before this
Court. He submits that if the Hon’ble Court would
make cursory glance upon the subject of the said
letter, in that event, it would have been found out
that the Deputy Collector, Tharad has written a
letter to the TDO, Vav for the purpose of removing
the obstructions from the road connecting two
villages.
11. Learned advocate Mr. Gandhi further submits that
petitioners have emphatically submitted that the
respondent has admitted during the course of his
cross-examination before the Mamlatdar that disputes
arose between the parties before about one to one and
half years and therefore the suit cannot be said to
have been filed within the period prescribed in the
statute itself and therefore the Mamlatdar ought not
to have entertained the suit. He has read the cross-
examination of the respondent – plaintiff and
submitted that a pertinent question is asked to the
respondent and in reply respondent has admitted that
before about one to one and half years from the date
of institution of the suit, the villagers have tried
to resolve the disputes between the parties. Thus, on
the basis of the said admission on the part of the
plaintiff, the suit of the plaintiff cannot be said
to be barred by the period of limitation prescribed
in the statute itself. He submits that the plaintiffs
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have made a specific averment in the suit itself that
the cause of action has arisen before about 10 days
from the date of institution of the suit.
12. Learned advocate Mr. Gandhi has drawn the
attention of this Court to the village map, which is
placed on record, and submitted that if the Court
would make cursory glance upon the village map, in
that event, it would have been found out that the way
which is sought by the plaintiffs is very much in
existence, which was blocked by the petitioners and
before passing the orders, the revenue authorities
have verified those particular facts. He further
submits that after the institution of suit by the
plaintiffs, a Panchnama as well as Rojkam have been
carried out by the concerned revenue authority in
presence of the petitioners. Thus, it cannot be said
that before passing the order, the Mamlatdar has not
followed the statutory procedure of law. He submits
that before arriving at the conclusion, the Mamlatdar
has also verified all the documents and materials
including the Panchnama, Rojkam, village map as well
as statements of the villagers and after appreciating
and considering all the materials, Mamlatdar jumped
to the conclusion that the petitioners have
obstructed the right of way of the respondents by
removing the thorn fence and merging the road into
their agricultural field. He submits that in the
Panchnama, it is specifically stated that before
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about 15 days, the road is blocked by the
petitioners. The said panchnama is prepared in
presence of the petitioners.
13. Learned advocate Mr. Gandhi further submits that
the petitioners have raised a ground regarding
suppression of material facts by the plaintiffs at
the time of institution of suit. On the contrary,
petitioners have suppressed the fact before this
Court that one chapter case is registered against
them wherein statement of the petitioner No.1 has
been recorded by the Executive Magistrate, wherein,
he has admitted that he would not create any
hindrance in the right of way of the plaintiffs in
future. Despite that, before about 10 days from the
date of institution of the suit, the petitioners have
merged the way, which was used and utilized by the
respondents, into their agricultural field by
removing thorn fence. He further submits that
statements of neighbours have been recorded wherein
they have very categorically stated that the way in
question has been blocked by the petitioners. He
further submits that another Panchnama was also
prepared by the Mamlatdar in presence of the parties
by paying surprise visit and after recording the
statements of the neighbours, the Mamlatdar has
formed an opinion that the way in question has been
blocked by the petitioners by removing thuhar/thuwar
(thorn) plants and merging the way with their land
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and by doing so, petitioners have tried to create an
impression that the said way is not in existence and
the portion of way is part of his field.
14. Learned advocate Mr. Gandhi further submits that
in fact before about one to one and half years, the
petitioners have blocked the right of way of the
respondents and at that relevant point of time, the
petitioners had beaten the respondents and their
relatives and therefore they were constrained to
register FIR against the petitioners. Thereafter,
charge-sheet came to be filed and trial has already
been commenced, wherein some of the persons have been
convicted by the learned Trial Court. He has already
produced a copy of the order of the conviction passed
by the learned Trial Court. He further submits that
one of the witnesses in the deposition recorded by
the Mamlatdar has stated on oath that petitioners
have removed thuhar plants and merged the way with
their land and due to the registration of the FIR and
initiation of the proceedings under section 107 of
the CrPC, the petitioners have opened the said way at
that relevant point of time but just before 10 days
from the date of institution of the suit, once again
petitioners have tried to create impediment upon the
said way. Thus, after considering the overall
materials and/or documents, the Mamlatdar has passed
the order, which is confirmed by the Deputy Collector
and therefore there is no error of law and/or facts
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apparent on the face of the record, which warrants
any interference at the hands of this Hon’ble Court.
He, therefore, urges that the petition may be
dismissed.
15. Learned AGP Ms. Bhati appearing for the
respondent Nos. 4 and 5 authorities has adopted the
arguments canvassed by learned advocate Mr. Gandhi
for the private respondents and submitted that the
revenue authorities have not committed any error of
law and/or facts while passing the impugned orders
and therefore the petition being devoid of merits is
required to be dismissed.
16. Having heard learned advocates for the parties
and having considered the materials placed on record,
it transpires that the private respondents herein
have filed a suit under Section 5 of the Act before
the Mamlatdar, Vav, inter alia, praying for permanent
injunction against the petitioners by restraining
them from obstructing the private respondents herein
to use the way in question and for removing the
obstructions/impediments created by the petitioners
over the said way. Pursuant to the institution of the
said suit, the Mamlatdar assigned the work of
carrying out spot inspection and Panchnama of the
place to the Circle Officer, Tundav. Accordingly, the
Circle Officer and Talati-cum-Mantri have carried out
Panchnama in presence of both the parties, wherein,
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it is specifically stated that before about 15 days,
the way in question has been blocked and no other
alternative way is there to go to the land bearing
Revenue Survey No.110 (land of the plaintiffs). It is
also found out from the record that Rojkam is also
carried out. After appreciating and considering the
materials available on record including the
Panchnama, Rojkam, statement of the witnesses,
village map, etc., the Mamlatdar has passed the
impugned order, whereby, he has directed the
petitioners herein to remove the obstructions and
open the way for the use of the plaintiffs. Being
aggrieved by the said order, petitioners herein have
preferred revision before the Deputy Collector.
However, the said revision also came to be rejected.
Hence, present petition is preferred.
17. The present petition is filed mainly on the
ground that though the plaintiffs have averred in the
memo of the suit that before about 10 days from the
date of institution of the suit, the cause of action
has arisen, but in fact during the course of cross-
examination of one of the plaintiffs, he has admitted
that the disputes have been cropped up between them
before about one to one and half years. Hence, the
cause of action mentioned in the suit is not
believable. I have also gone through the cross-
examination of one of the plaintiffs, which is placed
on record. It transpires that the said plaintiff has
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admitted during the course of his cross-examination
that the villagers have tried to resolve the dispute
which is going on between the parties since last one
to one and half years. However, on the strength of
said affirmative answer given by one of the
plaintiffs during the course of cross-examination
conducted by the counsel of the defence, to the
question put to him, it cannot be said that there is
admission on the part of the plaintiffs because at
the time of appreciating the said evidence other
surrounding circumstances are also required to be
seen and it is the settled proposition of law that
evidence led before the authority concerned is to be
read as a whole and it cannot be read as a piecemeal.
Admittedly, herein this case on hand, it is the case
of the plaintiffs from very inception that before
about one to one and half years (12 to 18 months)
from the date of institution of the suit, disputes
have been cropped up by and between the parties and
at that relevant point of time Chapter Case as well
as FIR have been registered by the plaintiffs against
the defendants and at that relevant point of time due
to intervention of the villagers, settlement has been
arrived at and statement of petitioner No.1 has been
recorded, wherein, he has specifically stated that
whatever impediments generated by the petitioners
have been removed and the original position of the
way has been restored by the petitioners. Therefore,
at the time of considering and appreciating the
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evidence, all the documents and materials available
on record as well as surrounding circumstances are
required to be seen. Thus, the suit of the plaintiffs
cannot be said to have been filed beyond the period
of limitation prescribed in the statute itself.
Moreover, the plaintiffs have specifically stated in
the memo of the suit itself that the cause of action
has arisen before about 10 days from the date of
institution of the suit and the said fact is also
fortified from the Panchnama of the place, which has
been carried out by the Circle Officer and Talati-
cum-Mantri in presence of both the parties. Thus, in
the opinion of this Court, the averment made by the
plaintiffs in the suit is corroborated by other piece
of evidence as well. Hence, the said contention
raised by the petitioners is not required to be
accepted.
18. Moreover, another ground which is sought to be
canvassed by learned advocate for the petitioners is
that at earlier point of time, disputes have been
cropped up between the parties and plaintiffs have
filed one Chapter Case against the petitioners,
wherein, the Executive Magistrate concerned has
recorded the statement of the petitioner No.1 and at
that relevant point of time, petitioner No.1 has
already stated before the Executive Magistrate that
whatever obstructions/impediments created by the
petitioners have been removed and earlier position of
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C/SCA/10104/2024 CAV ORDER DATED: 25/02/2026
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the way has been restored and said fact is also
fortified from the communication addressed by the
TDO, Vav to the Deputy Collector, Tharad. However, at
the time of filing the suit, the said important
aspect has not been disclosed by the plaintiffs.
Thus, there is suppression of material facts on the
part of the plaintiffs with a sole intent to misguide
the revenue authorities concerned. Learned advocate
for the petitioners has also relied upon one
communication entered into by and between the TDO,
Vav and Deputy Collector, Tharad. However, if the
contents of the said letter are to be seen, in that
event, it would have been found out that the TDO, Vav
has specifically stated about existence of way, which
was ordered to be opened by the Mamlatdar by way of
passing an order. Thus, on the contrary, the said
letter supports the case of the original plaintiffs –
private respondents herein. So far as the suppression
of material facts by the respondents at the time of
filing the suit is concerned, learned advocate Mr.
Gandhi for the private respondents has submitted that
on the contrary petitioners have suppressed the
materials facts before this Court and they have not
disclosed the fact of initiation of proceedings under
Section 107 of CrPC by the respondents against the
petitioners. It is also the case of the petitioners
that one alternative way is also in existence and
plaintiffs were using that way. However, it is
pertinent to note that the Panchnama, which is
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NEUTRAL CITATION
C/SCA/10104/2024 CAV ORDER DATED: 25/02/2026
undefined
carried out in presence of both the parties, does not
support the case of the petitioners about existence
of an alternative way for the respondents herein to
reach to their agricultural land. Moreover, it is
well settled that suit of the plaintiffs cannot be
rejected on the ground of existence of an alternative
way.
19. I have also perused the documents placed on
record from which it transpires that the petitioners
have removed the thuhar plants (which are generally
used for making the boundary of the land) and thereby
merged the way in question with their land and tried
to create an impression that in fact there was no way
and plaintiffs sought a right of way from their
agricultural field. The Mamlatdar as well as Deputy
Collector have appreciated and considered all the
materials and thereafter passed the impugned orders.
The scope of interference of this Court in the matter
of concurrent findings of fact recorded by the
Court/Authority is very limited. I have also gone
through the decisions upon which reliance is being
placed by learned advocate for the petitioners. I am
in complete agreement with the ratio laid down in the
said decisions but they would not be of any help to
the petitioners, considering the facts of the present
case.
20. In view of the aforesaid discussion, the
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NEUTRAL CITATION
C/SCA/10104/2024 CAV ORDER DATED: 25/02/2026
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petition being devoid of merit, is required to be
rejected. Accordingly, petition stands rejected.
Notice discharged.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
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