[Cites 7, Cited by 0]
Gujarat High Court
Vashrambhai Shamjibhai Baraiya vs L H Of Decd. Naranbhai Devabhai Sadadiya on 11 December, 2025
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C/SCA/4377/2025 JUDGMENT DATED: 11/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4377 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
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VASHRAMBHAI SHAMJIBHAI BARAIYA & ORS.
Versus
L H OF DECD. NARANBHAI DEVABHAI SADADIYA & ORS.
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Appearance:
MR RD CHAUHAN(6865) for the Petitioner(s) No. 1,2,3,4,5
MS SURBHI BHATI AGP for the Respondent(s) No. 2
MR JAY B AMBANI(13896) for the Respondent(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 11/12/2025
ORAL JUDGMENT
1. Rule. Learned advocates appearing for the parties
waives service of notice of rule.
2. By way of filing present petition under Articles
226 and 227 of the Constitution of India and under
the provision of the Mamlatdar Court Act, the
petitioners has prayed for following relief,
"(A) xxx xxx xxx.
(B) YOUR LORDSHIPS may be pleased to issue a
writ of mandamus or a writ in the nature of
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mandamus or any other appropriate writ,
order or direction to quash and set aside
the order dated 07/12/2024 passed by the
Deputy Collector, Jasdan, District Rajkot
in Appeal/Mamlatdar Court Section-23/Case
No. 05/2024 annexed at Annexure 'D' and
confirmed the order dated 27.02.2023 passed
by the Mamlatdar, Jasdan in Mamlatdar Court
Section 5(1) Remand Case N.01/2020 annexed
at Annexure 'C'.
(C) pending admission, hearing and final
disposal of this petition, your Lordships
may be pleased to stay the impugned order
dated 07/12/2024 passed by the Deputy
Collector, Jasdan, District Rajkot in
Appeal/Mamlatdar Court Section-23/Case No.
05/2024.
(D) xxx xxx xxx."
3. The facts of the case in nutshell are as under,
The petitioners, who are the original
plaintiffs, have filed suit under Section 5 of the
Mamlatdar Courts' Act before the respondent -
Mamlatdar, based upon which, the proceedings have
been initiated and ultimately at the end of day,
suit had been allowed. Being aggrieved by the said
decision, Revision Application was preferred by
the respondent - original defendant before the
Deputy Collector and the Deputy Collector remanded
the matter back with a specific direction to find
out that any alternate way is available or not.
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Then after, once again, panchkyas of the disputed
property had been carried out and the statements
of the neighbours were recorded and after
considering and appreciating the material
available on record, the Mamlatdar has allowed the
suit filed by the petitioners. Being aggrieved by
the said decision, Revision Application was
preferred before the Deputy Collector and the
Deputy Collector allowed the said revision
application preferred by the respondent.
Therefore, the present petition.
4. Heard learned advocate, Mr. R.D. Chauhan for the
petitioners, learned advocate, Mr. Jay Ambani for
the respondent no.1 and learned AGP Ms. Surbhi
Bhati for the respondent no.2.
5. Learned advocate, Mr. Chauhan submitted that the
petitioners herein, who are the original
plaintiffs are the agriculturist having land
bearing Survey No.116 situated in sim of Village :
Vadod, Taluka : Jasdan, District : Rajkot and the
petitioners are engaged in the business of
cultivation of farm since beginning and used to
pass particular way. The southern boundary of the
petitions' field joining in the adjoining land of
the private respondent's land bearing Survey
Nos.107 and 108 and from east-west direction and
on the southern boundary of Survey No.108 from
southern side direction. The respondent had
created obstruction in smooth movement of the
petitioners by throwing certain articles and by
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doing so, they have closed the way of the
petitioners. Therefore immediately within no time,
they have approached the authority concerned by
way of preferring an application under Section 5
of the Mamlatdar Courts' Act, based upon which,
the proceedings have been instituted and the
Mamlatdar concerned made spot visit and direction
was also issued to Circle Inspector to carry out
panchkyas as well as record the statements of the
parties. Notice was also issued to the persons
concerned and they remained present and in their
presence, the panchkyas has been prepared. He
further submitted that copy of said report is
placed on record and if the Hon'ble Court would
make cursory glance upon the contents of the said
report, in that event, it would have been found
out that all the panchas have stated in a very
categorical terms that there is no alternate way
available on the spot and secondly that the
petitioners and their forefather are using and
utilizing the said path way since last many years,
based upon which, the authority concerned decided
the suit. Being aggrieved by the said decision
delivered by the Mamlatdar, Revision Application
was preferred before the Deputy Act, at that
relevant point of time, issue pertaining to
alternate way is agitated by the parties but that
particular facts have not been considered by the
Mamaltdar concerned, therefore considering above
totality of the facts of the case, the Deputy
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Collector allowed the said revision application by
remanding the matter to the Mamlatdar with a
specific direction to decide afresh. Once again,
the panchkyas has been carried out by the
Mamlatdar and also spot inspection has been
carried out and jumps to a conclusion that there
is no alternate way available at the spot and by
way of creating obstruction on the path way, the
respondent has created obstruction upon the smooth
movement of the petitioners, therefore, the said
way is required to be opened on immediate basis.
Once again, the said order is challenged by the
respondent by way of preferring Revision
Application before the Deputy Collector. On the
strength of the particular grievance raised by the
revisionist, the Deputy Collector concerned has
called separate remarks from the office of the
DILR and after considering and appreciating
particular facts, has jumped to a definite
conclusion that adjacent to Survey No.117, land
being Survey No.116 of the petitioners is situated
and the said property is Government vest land and
there is one way and passing through the said
Government vest land and, therefore, there is
alternate way. The DILR has opined in a very
categorical terms that in fact from the revenue
record, those particulars way is not found
available and despite the fact that clear-cut
opinion is given by DILR, the Deputy Collector has
allowed the revision application preferred by the
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respondent without assigning any justifiable
reasons and those particular facts can be verified
from the operative part of the order. He has read
the order and submitted that the order of the
Mamlatdar has already been overturned by assigning
reasons that as per Section 5(2) of the Mamlatdar
Courts' Act, in a particular situation, those
particular action could be said to have been
initiated by the Mamlatdar and by quoting the
provision of those particular section, the order
passed by the Mamlatdar had been overturned.
Nowhere in the entire body of the operative part,
any specific finding about the document and
material available on record is stated and no
specific reasons have been assigned to overturn
the decision rendered by the Mamlatdar and,
therefore, apparently on the face of it, it can be
said that the order passed by the Deputy Collector
is against the material and document available on
record and, therefore, same is required to be
quashed and set aside. He submitted that for the
sake of arguments, without admitting that if any
alternate way available, in that event, solely on
that count, the existing way, which was used and
utilized by the petitioners and their ancestral
since last many decades, cannot be closed and no
specific opinion has been expressed by the Deputy
Collector about the same and, therefore, the order
passed by the Deputy Collector is required to be
quashed and set aside.
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6. Learned advocate, Mr. Chauhan submitted that at
the time of entertaining the suit, the Mamlatdar
has already considered the statements of the
witnesses as well as statements of the persons and
jumped to a conclusion that there is no alternate
way available at the place and in support of the
same, the DILR has also given specific opinion in
a clear terms but despite the said fact, the
Deputy Collector without any reason quashed the
said order. He, therefore, submitted that
considering the above totality of the facts, the
present petition may be allowed by quashing and
setting aside the impugned order.
7. On the other hand, learned advocate, Mr. Ambani
for the respondent no.1 has strongly opposed the
present petition and submitted that it is an
admitted position of fact that the respondent
herein is the owner and occupier of the land
bearing Survey Nos.107 and 108 and the petitioners
are the owner and occupier of the land bearing
Survey No.116 and both the fields are adjacent to
each other. He submitted that initially the
petitioner and their relatives used the said path
but in fact, there is alternate way available and
the said fact is clearly fond out from the village
map and eastern side of land bearing Survey
No.116, Survey No.117 is available which is
Government vest land, through which, the
petitioners can make excess to their field. He
submitted that path way mentioned in the map
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crystallize the position of fact that the said
route is longer than the present existing route
and, therefore, the petitioners are not ready to
accept the said path way, otherwise, through the
said route, they can easily enter into their
field. He submitted that at the time of
entertaining the revision application, the Deputy
Collector has already called the report from the
DILR and the officer of the DILR has given
specific opinion in a clear manner that there is
alternate way available at the spot, through
which, the petitioners can easily make entry in
the field but the said way is not shown in the
village map. He submitted that if the Hon'ble
Court would verify about the status of existing
way then, it is found out that the petitioners
used and utilized the said way since last many
years and the said way is not found available in
the map, therefore solely on the ground that the
said path way is not found available in the
village map, it cannot be said that the said way
is not in existence, therefore on the strength of
the material placed on record, the respondent
herein has proved the material fact that alternate
way is in existence and through which the
petitioners can easily enter into their field, in
that event, the order passed by the Deputy
Collector is not required to be disturbed. He
submitted that at the time of preferring the suit
before the Mamlatdar, the petitioners have come
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with a specific case that by way of creating
obstruction in the way, the respondent has blocked
their way and created breach in the easmentary
right of way. He submitted that however easmentary
right can be decided by the competent civil court,
despite the fact that those particular facts have
already been brought to the notice of the
Mamlatdar concerned, he proceeded beyond his
jurisdiction and, therefore, the said order passed
by the Mamlatdar has been rightly quashed and set
aside and the impugned order passed by the Deputy
Collector is just, fair and reasoned order, which
does not require any interference at the hands of
this Hon'ble Court. It is, therefore, submitted
that the present petition may be rejected.
8. Learned AGP Ms. Bhati appearing for the respondent
no.2 has also objected the present petition and
submitted that there is no error of law committed
by the authority at the time of taking decision.
She submitted that in fact, essentially there is
private dispute between two individual and the
State has limited role to play, therefore, she
need not have to say much. She, however, adopts
the submissions canvassed by learned advocate
appearing for the respondent no.1. She, therefore,
submitted that the present petition may be
rejected.
9. Having heard learned advocates appearing for the
parties and having gone through the material
available on record, it is evident that the
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petitioners are the owner of land bearing Survey
No.116 situated in the sim of Village : Vadod,
whereas the private respondent is the owner of
land bearing Survey Nos.107 and 108. The
petitioners are indulged into the agricultural
activities and to approach their land, not only
the petitioners but also their forefather were
using the said path way, which has been blocked by
the private respondent, therefore, the petitioners
submitted an application under the Mamlatdar
Courts Act before the Mamlatdar for opening up the
way, based upon which, the proceedings have been
instituted and spot inspection was carried out and
panchkyas was also prepared, based on which, the
Mamlatdar jumped to a conclusion that there is no
alternate way available on the spot, however, the
said order was challenged by the private
respondent before the Deputy Collector, who
remanded the matter back after considering the
submissions made on behalf of the private
respondents and on remand of the case, the
Mamlatdar again carried out procedure as required
under the law and again jumped to a conclusion
that there is no alternate way available at the
spot and by way of creating obstruction on the
path way, the respondent has created obstruction
upon the smooth movement of the petitioners,
therefore, the private respondent was directed to
open the said way on immediate basis, however, the
said order was once again assailed by the private
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respondent before the Deputy Collector, however
there, the Deputy Collector concerned had called
separate remarks from the office of the DILR and
after considering and appreciating particular
facts, jumped to a definite conclusion that
adjacent to Survey No.117, land being Survey
No.116 of the petitioners is situated and the said
property is Government vest land and there is one
way and passing through the said Government vest
land and, therefore, there is alternate way,
therefore, the revision application preferred by
the private respondent has been allowed by
impugned order, which has been assailed in the
present petition.
10. It is the specific case of the petitioners that to
approach their land, the way available is on the
southern boundary of their land through the
southern boundary of the private respondent's land
bearing Survey Nos.107 and 108 from east-west and
on the eastern boundary of Survey No.108 from
north-south and the said way is being used by them
since number of years and for the reasons best
known to the private respondent, the said way has
been blocked by throwing certain articles, which
resulted into initiation of the proceedings under
the Mamlatdar Courts Act. It is found out from the
record that on filing of such application, spot
was being inspected and panchkyas has already been
prepared and even the statements of persons
concerned have already been recorded, which
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clearly go on to show that there is no alternate
way available for the petitioners and the persons,
whose statements have been recorded, have stated
in a very categorical terms that the petitioners
and their forefathers are using and utilizing the
said way since number of years and thus, the say
of the petitioners is found to be correct.
11. I have considered first order passed by the
Mamlatdar, whereby the application preferred by
the petitioners has been allowed as also the
second order passed by the Mamlatdar on remand of
the case by the Deputy Collector, whereby the
order passed passed in favour of the petitioners.
On consideration of those two orders, it is found
out that the Mamlatdar has taken into
consideration the panchkayas prepared by the
authority as also the statements of the persons
concerned and, thereafter, jumped to a conclusion
that there is no other alternate way for the
petitioners to approach their field and thereby
allowed the application preferred by the
petitioners.
12. I have also considered the impugned order passed
by the Deputy Collector, where the revision
application of the private respondent has been
allowed and after having considered, it is found
out that the findings given and conclusion arrived
at by the Mamlatdar have not been properly
considered and erroneously allowed the said
application. Not only that, it is observed that
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having considered the panchkyas and the statements
of the local persons, it is evident that the
Mamlatdar has committed an error while passing
said order and the dispute with regard to way can
be agitated before the civil court. However in my
considered opinion, the said finding is incorrect
in view of the fact that there are documents
available on record in the form of panchkyas as
well as statements of the persons concerned, which
clearly go on to show that there is no other
alternate way and the petitioners and their
forefather are using and utilizing the said way
since number of years.
13. So far as the submission made by learned advocate
for the private respondent with regard to the
alternate way available for the petitioners is
concerned, I have considered the material and
evidence available on record including the map
produced on record by the parties and found that
there is no dispute about the alternate way for
the petitioners. However the fact remains that the
way, which has been blocked by the private
respondent, has been using by the petitioners and
their forefather since number of years and the
said fact is supported by the statements of the
persons concerned recording by the revenue
authority. Therefore, the said contention is
misconceived.
14. Accordingly, the present petition is allowed. The
impugned order dated 07.12.2024 passed by the
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Deputy Collector, Jasdan, District Rajkot in
Appeal/Mamlatdar Court Section-23/Case No. 05/2024
is hereby quashed and set aside and the order
dated 27.02.2023 passed by the Mamlatdar, Jasdan
in Mamlatdar Court Section 5(1) Remand Case
N.01/2020 is restored. The concerned authority is
hereby directed to remove the obstruction created
by the private respondent at the earliest after
following due procedure of law as ordered by the
Mamlatdar while passing order dated 27.02.2023.
15. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
