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;

          (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 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 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 the same land between the same parties is pending, the Mamlatdar has no jurisdiction to entertain a suit under Section

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 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 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 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 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 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.

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.