[Cites 13, Cited by 0]
Gujarat High Court
Ambarambhai Devabhai Dalwadi vs Mamlatdar, Vadhavan on 11 December, 2025
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Reserved On : 05/12/2025
Pronounced On : 11/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1736 of 2022
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AMBARAMBHAI DEVABHAI DALWADI & ANR.
Versus
MAMLATDAR, VADHAVAN & ORS.
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Appearance:
MR NIRAV C SANGHAVI(5950) for the Petitioner(s) No. 1,2
MR YV VAGHELA(2450) for the Respondent(s) No. 2,3,4,5,6
MR JAY TRIVEDI, AGP for the Respondent(s) No. 1,7
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV ORDER
1. By way of preferring present petition under
Articles 226 and 227 of the Constitution of India,
the petitioners have prayed for the following
relief/s:
"A. Your Lordship may be pleased to admit
this Special Civil Application.
B. Your Lordship may be pleased to allow
this Special Civil Application by issuing
appropriate writ, order or direction for
quashing and setting aside the judgment and
order passed by the respondent no.7 on dated
25.11.2021 and further be pleased to quash and
set aside the judgment and order passed by the
Respondent No.1 on dated 27.11.2020 in the
interest of justice.
C. Pending admission hearing and final
disposal of the petition, this Hon'ble Court
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may be pleased to stay the implementation,
execution and operation of the order passed by
the respondent no.7 on dated 25.11.2021 as
well as to stay the implementation, execution
and operation of the judgment and order passed
by the Respondent No.1 on dated 27.11.2020 in
the interest of justice.
D. This Hon'ble Court may be pleased to
grant such other and further relief as deemed
just and proper in the interest of justice."
2. The facts of the case of the petitioner can be
summarized in nutshell as under:
2.1. The private respondents herein - original
plaintiffs have filed one suit under Section 5 of the
Mamlatdars' Courts Act (hereinafter be referred to as
the 'Act' for short) against the present petitioners
- original defendants for permanent injunction, inter
alia, alleging that the petitioners herein have
created obstructions and/or impediments for smooth
usage of the way in question, which was being used by
the private respondents for entering into their
agricultural field since decades. Therefore, by way
of instituting the suit, private respondents -
original plaintiffs have prayed that the petitioners
- original defendants may be directed to remove the
said impediments and open the way for the usage of
the present respondents.
2.2. After appreciating and considering the materials
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available on record, the learned Mamlatdar decreed
the said suit in favour of the private respondents
herein. Being aggrieved by the said decision,
petitioners herein have preferred revision
application before the concerned Deputy Collector.
The said revision application came to be partly
allowed and thereby the matter was remanded back to
the concerned Mamlatdar to decide the suit afresh.
2.3. Thereafter, the Mamlatdar once again started the
suit proceedings and after appreciating and
considering the materials available on record,
decreed the suit in favour of the respondents herein.
Therefore, once again, petitioners herein have
preferred revision application before the Deputy
Collector concerned. However, the said revision
application came to be dismissed. Hence, present
petition is preferred.
3. Heard learned advocate Mr. Nirav C. Sanghavi for
the petitioners, learned AGP Mr. Jay Trivedi for
respondent Nos. 1 an 7 and learned advocate Mr. Y. V.
Vaghela for private respondents.
4. Learned advocate Mr. Sanghavi submits that the
present petition is preferred mainly on the ground
that at the time of deciding the suit, the Mamlatdar
concerned has not followed the due procedure
prescribed in the statute. He further submits that
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petitioners and private respondents are the
neighbours and having lands adjacent to each other.
It is the specific case of the respondents that
petitioners herein had created obstructions in the
pathway which was being used by the private
respondents to reach to their agricultural field and
with a sole intention to remove the said obstruction,
a suit under Section 5 of the Act. The said suit came
to be decreed in favour of the private respondents.
Therefore, being aggrieved and dissatisfied with the
said order, petitioners herein have preferred
revision application before the concerned Deputy
Collector. The said revision application came to be
partly allowed by setting aside the order passed by
the Mamlatdar and remanding the matter back to the
Mamlatdar for deciding it afresh. Despite the fact
that the matter was remanded back to the Mamlatdar
by issuing specific directions by the Deputy
Collector, the Mamlatdar concerned has not
scrupulously followed those directions and ultimately
decided the said suit in a very hasty manner and said
fact itself is fortified from the materials placed on
record. He further submits that as per the provisions
of the Act, if any pathway is blocked and/or
obstructed, in that event, as per the statutory
provisions of the Act, within a period of six months,
the suit is required to be instituted before the
Mamlatdar. However, admittedly, in the instant case,
if the Hon'ble Court would make cursory glance upon
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the cause of action narrated in the suit itself, it
crystallizes the position of fact that no specific
averment about the cause of action is mentioned and
if hypothetically on the basis of averments made in
the suit, time of cause of action is to be counted,
in that event, it would have been found out that
there is gross delay in preferring the said suit and
solely on the ground of delay in preferring the suit,
the said suit is required to be dismissed in limine.
Learned advocate Mr. Sanghavi for the petitioners has
read the operative part of the order passed by the
Deputy Collector and submitted that the Deputy
Collector has confirmed the order of the Mamlatdar by
way of non-speaking order and learned Deputy
Collector has not assigned sufficient reasons. He
submits that in fact on 27.11.2020, the Mamlatdar has
passed the impugned order and just two days before
passing of the impugned order, Panchnama of the place
has been carried out by the concerned officer
appointed at the instance of the Mamlatdar and
statements of various persons have been recorded. He,
therefore, submits that Mamlatdar has hastily passed
the impugned order. He submits that admittedly notice
was not issued to the petitioners and they have not
remained present at the time when the Panchnama was
prepared. The copies of the Panchnama as well as
statements of witnesses have been placed on record,
which crystallizes the position of fact that the said
activity was carried out by the concerned officer on
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25.11.2020 and thereafter within no time on
27.11.2020 the Mamlatdar passed the impugned order.
He submits that thus the aforesaid sequence of events
crystallizes the position of fact that sufficient
opportunity of hearing was not afforded to the
petitioners to put up their case.
5. Learned advocate Mr. Sanghavi has referred to
the number of provisions of the Act and submitted
that it is settled proposition of law that the suit
preferred by the plaintiff under Section 5 of the Act
is required to be decided in a summary manner but at
the time of deciding the suit, statutory provisions
of law embodied in the statute itself are required to
be followed in stricto sensu manner. He submits that
as per the statutory provisions of law, before
deciding the suit filed under Section 5 of the Act,
issues of determination are required to be framed and
sufficient opportunities of leading the evidence and
cross-examining the witnesses are required to be
provided to all the parties. However, it is an
admitted position of fact that in the instant case
the Mamlatdar has passed the impugned order merely on
the basis of Panchnama and statement of witnesses and
no opportunity of cross-examination of the said
witnesses has been provided to the petitioners and
before deciding the suit, issues of determination
have not been framed. Therefore the view adopted by
the Mamlatdar and subsequently confirmed by the
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Deputy Collector in revision application is not in
consonance with the statutory provisions of law and
therefore the same is required to be quashed and set
aside by allowing the present petition and remanding
the matter back to the Mamlatdar for deciding the
suit afresh after following due procedure of law and
providing full opportunity of hearing as well as
leading evidence to the concerned parties. He relied
upon the following decisions in support of his
submissions.
1. Order dated 21.10.2024 passed by the
Division Bench of this Court in Letters Patent
Appeal No.1558 of 2024 and allied matters;
2. The judgment dated 16.03.2005 passed by
this court in the case of Raisinh Dhirajsinh
Boradhara v. State of Gujarat;
3. The judgment dated 28.08.2008 passed by
this Court in Civil Revision Application No.1280
of 2000; and
4. The judgment dated 03.01.2019 of Bombay
High Court in the case of Sudhir Yashwant
Dhangade v. Ankush Kashiram Bole & Ors.
6. Learned advocate Mr. Vaghela appearing for the
private respondents - original plaintiffs has
objected present petition with vehemence and
submitted that in fact at earlier point of time, the
predecessor-in-title of the property had already
instituted suit against the forefathers of the
petitioners - original defendants, wherein, after
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appreciating and considering all the documents
available on record, the Mamlatdar concerned has
passed specific order directing the petitioners to
remove the unauthorized impediments/obstructions
created by them and open the way in question. Thus,
the dispute between the parties is going on since
last 12 years. However, after lapse of some time,
once again the petitioners - original defendants have
started creating obstructions in the smooth
functioning and movement of the plaintiffs - private
respondents herein, by blocking the way in question
and therefore respondents were constrained to file
suit before the Mamlatdar, pursuant to which,
Mamlatdar has assigned the work of carrying out
Panchnama as well as recording of the statements of
the witnesses to the concerned officer. It is an
admitted position of fact that the field of the
respondents is situated behind the field of the
petitioners and the respondents and their forefathers
used to go to their field through the way in question
which is shown in the village map since last many
years. However, the petitioners have blocked the way
in question by creating impediments and obstructions.
The Mamlatdar concerned has verified all the
documents placed before him and passed impugned order
by assigning detailed reasons and holding that the
petitioners herein have created obstructions on the
way in question due to which smooth movement of the
private respondents herein have been affected and
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therefore specific directions were issued to the
petitioners to remove the obstructions and open the
way. The said view adopted by the Mamlatdar has been
confirmed by the learned Deputy Collector. Therefore,
the Mamlatdar has, after following due procedure of
law prescribed under the statute, passed the impugned
order by assigning detailed reasons and said view is
already confirmed by the Deputy Collector. Therefore,
the petitioners have preferred present petition
challenging the concurrent findings of fact recorded
by the concerned revenue authorities and the scope of
interference by this Court in the matter of
concurrent findings is very limited. He submits that
the impugned orders are just, fair and reasonable and
based upon the sound principles of law. He further
submits that since last more than 12 years, the
dispute is going on between the parties, due to
which, private respondents herein have to suffer a
lot. In fact since last 12 years, the respondents
used to go to their field by using a way which is
four to five kms. longer than the existing way in
question. He has drawn the attention of this Court to
a map of the village which is placed on record and
submitted that the map of the village crystallizes
the position of fact that the way in question was
already in existence since last many years. He,
therefore, submits that present petition being devoid
of merits, may be dismissed.
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7. Learned AGP Mr. Trivedi for respondent Nos.1 and
7 has submitted that essentially the dispute is
between two private parties and State has very
limited role to play. However, he submits that at the
time of entertaining the suit preferred by the
plaintiffs - private respondents herein under Section
5 of the Act, the Mamlatdar concerned has verified
the Record & Proceedings and after considering all
the documents and materials passed just, fair and
reasonable order which does not require to be
interfered with by this Hon'ble Court. He further
submits that the said order is subsequently confirmed
by the Deputy Collector. He submits that at the time
of deciding the suit, the Mamlatdar has, after
appreciating and considering the village map,
panchnama and statements of the witnesses recorded by
the concerned revenue officer and other materials
placed before him, come to the conclusion that the
way in question has been used by the private
respondents and their forefathers since last many
years and said way is blocked by the petitioners by
creating obstructions and therefore the said
obstruction is directed to be removed by the
petitioners. Therefore, when the authorities
concerned have passed the impugned orders after
considering and appreciating the materials available
before them, the petition is not required to be
entertained by this Hon'ble Court.
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8. Having heard the learned advocates appearing for
the parties and having considered the materials
placed on record, it appears that the private
respondents herein - original plaintiffs have
preferred one suit under Section 5 of the Act before
the Mamlatdar, inter alia, praying for permanent
injunction by alleging that the petitioners herein -
original defendants have blocked the pathway of the
respondents, which was being used by them including
their forefathers to reach to their agricultural
fields since last many years, by creating
impediments/obstructions. The said suit has been
decreed in favour of the private respondents herein
by directing the petitioners to open the way in
question by removing the obstructions. The
petitioners - original defendants, therefore,
preferred a revision before the concerned Deputy
Collector. The said revision has been partly allowed
and matter has been remanded back to the Mamlatdar
for deciding the suit afresh after affording
opportunity of hearing to the parties. Thereafter,
once again, the suit came to be decreed in favour of
the respondents herein. The petitioners, therefore,
once again preferred revision application before the
Deputy Collector. However, the said revision also
came to be dismissed by the Deputy Collector by
upholding the order passed by the Mamlatdar.
Therefore, present petition is filed challenging the
concurrent findings of fact recorded by the concerned
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revenue authorities.
9. It is the specific case of the petitioners that
after the matter is remanded back, the Mamlatdar
concerned has passed the impugned order in a hurried
manner by bypassing the due procedure as envisaged in
the statute itself and therefore merely on this
ground the matter is required to be remanded back to
the Mamlatdar for deciding the issue afresh. As per
the statutory provisions of law, before deciding the
suit filed under Section 5 of the Act, issues of
determination are required to be framed and
sufficient opportunities of leading the evidence and
cross-examination of the witnesses are required to be
provided to the parties. However, from the record, it
appears that in the instant case, the issues of
determination have not been framed by the Mamlatdar.
Now, I would like to refer the decision dated
28.08.2008 rendered by this Court in Civil Revision
Application No.1280 of 2000, wherein, the Court
observed and held as under:
"17. A close perusal of the order of the
Mamlatdar would show that he did not frame
issues as contemplated by Section 19 (1) (c)
(1) (2) (3) of the Act. As he did not frame
the issues he could not record clear findings
with regard to the controversy in question.
The aforesaid sections make it incumbent upon
the concerned authority to frame the issues so
as to decide the same. In the circumstances,
it can be said that the Mamlatdar has not
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conducted the matter as per the relevant
provisions of the Act. The authority deriving
jurisdiction under the Special Statute cannot
exercise its powers in ignorance and without
complying with the statutory provisions. The
procedure is embed in the statute with a
specific purpose and it has to be followed for
deciding the issues. The order that was passed
by the Mamlatdar was contrary to Sub-Sec. 4 of
Section 19 of the Act."
10. Thus, the order impugned passed by the Mamlatdar
is contrary to the statutory provisions of the Act
and therefore, without entering into the merits of
the matter, merely on this ground the matter is
required to be remanded back to the Mamlatdar
concerned for deciding the issue afresh.
11. In the case of Sudhir Yashwant Dhangade (supra),
the Bombay High Court has observed and held as under:
"10. It is thus evident that the Act
specifically confers powers on the Mamlatdar
to record evidence. Hence, the Court presided
over by the Mamlatdar, would be a 'Court'
within the meaning of Section 3 of the Indian
Evidence Act and provisions of Section 135,
136, 137 and 138 of the Indian Evidence Act
would be applicable to the proceedings under
Section 5 of the Mamlatdars Court Act.
11. In the instant case, the records reveal
that the Mamlatdar has recorded statements of
the respondent no.1 and his witnesses. In view
of applicability of the provisions of Section
135, 136, 137 and 138 of the Indian Evidence
Act to the proceedings under Section 5 of the
Mamlatdars Court Act, the petitioner had right
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to cross-examine the respondent no.1 and his
witnesses. The records reveal that the learned
Mamlatdar had not given an opportunity to the
petitioner to cross examine the respondent
no.1 and his witnesses. Suffice it to say,
right of cross examination being legal right,
the petitioner was not required to file any
application but it was the obligation of the
statutory authority recording the evidence to
afford such opportunity. In the instant case,
no such opportunity was given.
12. It is well settled that no evidence
affecting a party is admissible against that
party unless the latter has had an opportunity
of testing its truthfulness by cross
examination. Under the circumstances, the
learned Mamlatdar was not justified in placing
reliance on the evidence of the respondent
no.1 and his witnesses without giving any
opportunity of cross examination. The order
passed by the learned Mamlatdar is in breach
of principles of natural justice.
13. The issue raised in the petition being a
pure question of law, which is not dependent
on the determination of any question of fact
and can be allowed to be raised at any stage
of the litigation. Hence, the fact that the
petitioner had not raised this ground before
the learned Additional Collector would not
prevent him from raising the said ground in
this Writ Petition."
12. It is an admitted position of fact that the
Mamlatdar concerned has passed the impugned order
based on Panchnama, village map as well as the
statements of the witnesses without giving any
opportunity of cross-examination of the said
witnesses, to the present petitioners. Thus, on this
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ground also the matter is required to be remitted
back to the Mamlatdar for deciding the suit afresh,
after following due procedure as envisaged in the
Statute itself and after affording opportunity of
leading evidence and cross-examination of witnesses
to the parties.
13. In view of the aforesaid observations, the
impugned order dated 27.11.2020 passed by the
concerned Mamlatdar as well as order dated 25.11.2021
passed by the concerned Deputy Collector are hereby
set aside. The matter is remanded back for
adjudication by the Mamlatdar, keeping in mind of the
provisions of the Act, strictly in accordance with
law, as expeditiously as possible, preferably within
a period of 9 (nine) months from the date of receipt
of copy of this order. It goes without saying that
due care shall be taken by the Mamlatdar while making
inspection of the site in question and recording of
evidence of the witnesses.
14. With the aforesaid observations and directions,
petition is partly allowed. It is clarified that the
Mamlatdar shall decide the matter independently
without being influenced by any of the observations
made hereinbefore.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
