[Cites 7, Cited by 0]
Gujarat High Court
Koli Jayantibhai Maghaji vs Chatraliya Maganbhai Dalabhai on 9 April, 2026
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Reserved On : 20/03/2026
Pronounced On : 09/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12809 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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KOLI JAYANTIBHAI MAGHAJI & ANR.
Versus
CHATRALIYA MAGANBHAI DALABHAI & ORS.
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Appearance:
MR P S DATTA(11324) for the Petitioner(s) No. 1,2
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2
MR ADITYA PATHAK, AGP for the Respondent(s) No. 6
MR HRIDAY BUCH(2372) for the Respondent(s) No. 1,2,3,4,5
REFUSED SERVED (N)(10) for the Respondent(s) No. 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,
petitioner has sought for the following main relief:
"(A) YOUR LORDSHIPS may be pleased to issue a
writ of mandamus or certiorari or any other
appropriate writ, order or direction quashing
and setting aside the impugned orders dated
23.12.2022 passed by respondent- Mamlatdar in
Mamlatdar Court Act Remand Case No.1 of 2022
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(Annexure - M) as well as order dated
19.06.2023 passed by the respondent - Deputy
Collector in Revision Application No.01/2023
(Annexure - P) and further be pleased to
quash and set aside all consequential action
pursuant to impugned orders:"
2. Heard learned advocate Mr. P. S. Datta for the
petitioners, learned advocate Mr. Denish Morakhia for
learned advocate Mr. Hriday Buch for private
respondents and learned AGP Mr. Aditya Pathak for the
respondent - State.
3. Learned advocate Mr. P. S. Datta for the
petitioners submits that a suit under Section 5 of
the Mamlatdars' Courts Act (it shall hereinafter be
referred to as the 'Act' for short) has been
instituted by the private respondents herein against
the petitioners with a prayer that they may be given
a right of way from the land of the petitioners. The
said suit has been dismissed by the Mamlatdar
concerned. Therefore, the said order has been
assailed by way of preferring revision application
before the Deputy Collector concerned. The said
revision application has been allowed by the Deputy
Collector by remanding the matter back to the
Mamlatdar by a reasoned order. He submits that at the
time of passing the order, the Deputy Collector has
assigned exhaustive reasons specifically stating that
at the time of conducting the suit proceedings, the
Mamlatdar concerned has not considered certain
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important provisions of the Act in true spirit and
proper perspective. Thus, the revision application
has been considered by the Deputy Collector by
remanding the matter back to the Mamlatdar to decide
the suit afresh in accordance with law, keeping in
mind the statutory provisions of the Act. Thereafter,
once again, the proceedings of the suit have been
initiated at the instance of the Mamlatdar and
ultimately at the end of the day, the suit filed by
the private respondents herein has been allowed by
the Mamlatdar. However, at the time of entertaining
the suit, Mamlatdar has, in fact, not considered the
issue pinpointed by the Deputy Collector by passing
the order of remand and therefore there are
fundamental flaws in the proceedings initiated at the
instance of the Mamlatdar concerned and therefore
solely on this count, order passed by the Mamlatdar
is required to be quashed and set aside.
4. Learned advocate Mr. Datta has further submitted
that the dispute revolves around land bearing Survey
No.44 Paiki 2/Paiki 1 (New Survey No.652) as well as
Survey No.44 Paiki 1/Paiki 1 (New Survey No.655)
situated at village Vaghrol, Taluka Dantivada,
District Patan. It is the specific case of the
plaintiffs that before 20 days of filing of the suit,
impediments have been created by the defendants in
smooth usage of the way in question, which was being
used and utilized by the plaintiffs. He further
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submits that in fact based upon the institution of
the suit, spot inspection was carried out by the
Circle Officer on 15.01.2021 and Panchnama was
prepared and statements of the witnesses were
recorded by the Circle Officer and as per the said
Panchnama, the way which is sought by the plaintiffs,
is not at all in existence, however, because of
friendly relationship between the parties, the
petitioners allowed the plaintiffs to use and utilize
the said passage, which in fact the part and parcel
of private property of the petitioners. He submits
that after considering all the documents and
materials available on record, the Mamlatdar has
dismissed the suit, specifically observing that
private respondents herein - plaintiffs can use the
road passing through Survey Nos. 12, 14, 36, 37, 39,
40, 41, 42 and 43, and they can also use public road
which is passing through Survey Nos. 8, 9, 10, 11,
12, 44, 45, 46 and 51 to reach their agricultural
field (Survey No.43). The said order passed by the
Mamlatdar has been assailed by way of preferring
revision before the Deputy Collector concerned. The
said revision application has been allowed by the
Deputy Collector by remanding the matter back to the
Mamlatdar. He submits that in the remand proceedings,
an application is preferred to grant interim
injunction. The said application has been
entertained. Thereafter, the Mamlatdar had carried
out Panch Rojkam of the place and after considering
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and appreciating all those documents and materials,
the suit was allowed. Learned advocate Mr. Datta
further submits that if the Hon'ble Court would make
cursory glance upon the contents of the Panch Rojkam
carried out at the instance of the Mamlatdar, in that
event, it would have been found out that both the
Panchas of said Panchnama have made quite contrary
statements about the usage of the disputed way by
specifically stating that in fact two different
alternative ways are available through which the
private respondents can easily reach to their
agricultural field. Despite the clear and clinching
materials and documents were placed on record, the
Mamlatdar allowed the suit without giving due
weightage to those important documents. He submits
that it has also come on record that the way, which
is mentioned in the suit, is not at all found
available in the revenue record including the village
map and therefore Mamlatdar ought to have dismissed
the suit. However, the suit has been decreed.
Therefore, revision application has been preferred by
the petitioners herein to assail the said order
before the Deputy Collector. The said revision
application has been dismissed by the Deputy
Collector. He has submitted that the Deputy Collector
had essentially put reliance upon the findings
recorded by the Mamlatdar in earlier proceedings. He
submits that those findings have already been taken
in to consideration by the Deputy Collector at
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earlier point of time and thereafter matter has been
remanded to the Mamlatdar concerned. He submits that
the reliance cannot be placed upon those
facts/documents/materials and therefore the view
adopted by the Deputy Collector while confirming the
order of the Mamlatdar is unjust, unfair and illegal
and therefore only on this ground, order is required
to be quashed and set aside.
5. Learned advocate Mr. Datta has further submitted
that in the earlier proceedings, on account of the
instructions given by the Mamlatdar, the Circle
Officer had carried out Panchnama, wherein, certain
factual aspects have been mentioned by the witnesses
which were considered by the Deputy Collector. Those
proceedings have been quashed and set aside by the
Deputy Collector in the earlier round of litigation
by remanding the matter back to the Mamlatdar to
decide the proceedings of suit afresh keeping in mind
the statutory provisions of the Act. He further
submits that in fact during the pendency of the
proceedings, evidence of three independent witnesses
in the form of affidavit had come on surface before
the Mamlatdar. However, it is found out from the
order of the Mamlatdar that very conveniently those
evidences have been discarded by the Mamlatdar
concerned. Therefore, the order passed by the
Mamlatdar ought to have been quashed and set aside by
the Deputy Collector. He has further submitted that
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it is settled proposition of law that at the time of
entertaining the suit instituted under the provisions
of the Act, the Panchnama under Section 19 of the Act
is required to be carried out at the instance of the
Mamlatdar and Mamlatdar has to frame the issues. He
submits that admittedly the Mamlatdar has not framed
any issue and therefore the order passed by the
Mamlatdar is against the settled provisions of law
and the Deputy Collector has committed grave error
while upholding the said order and therefore both the
orders passed by the Mamlatdar and Deputy Collector
are required to be quashed and set aside. In support
of his submissions, learned advocate Mr. Datta has
put reliance upon the decision of this Court in the
case of Chhitubhai Budhiyabhai Patel v. Chandubhai
Kuvarji Kalia Patel & ors., rendered in Civil
Revision Application No.1280 of 2000, in the case of
Nagarbhai Bhikhabhai Kedva v. Deputy Collector,
Banaskantha, reported in 2023(0) AIJEL-HC 245352.
6. Learned advocate Mr. Datta has submitted that
the Mamlatdar has carried out the Panchnama but quite
contrary picture has been emerged from the versions
of the Panchas, despite that, the Mamlatdar has
heavily put reliance upon the contents of the
Panchnama without any corroborative piece of evidence
in support of the contents of the said Panchnama.
Therefore, the said view adopted by the Mamlatdar and
subsequently confirmed by the Deputy Collector is
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unjust, improper and illegal and therefore the orders
passed by the concerned revenue authorities are
required to be quashed and set aside.
7. Per contra, learned advocate Mr. Denish Morakhia
for learned advocate Mr. Hriday Buch for the private
respondents submits that the orders passed by the
revenue authorities are just, fair and legal and
based upon the sound principle of law and therefore
interference at the hands of this Court is not
warranted. He further submits that the respondents
herein are the original plaintiffs and they
instituted a suit against the defendants - present
petitioners before the Mamlatdar under the provisions
of the Act. At first instance, the suit had been
dismissed by the Mamlatdar. Therefore, being
aggrieved by and dissatisfied with the said order, a
revision was preferred. The said revision application
came to be allowed by the Deputy Collector by
assigning detailed reasons and the matter was
remanded back to the Mamlatdar concerned to decide it
afresh after providing opportunity of hearing to the
rival parties and keeping in mind the statutory
provisions of the Act. Thereafter, once again, the
Mamlatdar had initiated the proceedings and
ultimately at the end of the day, the Mamlatdar
concerned decreed the suit in favour of the
plaintiffs - private respondents herein. He submits
that the said order of Mamlatdar is challenged by way
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of preferring revision application before the Deputy
Collector. However, the Deputy Collector has
dismissed the said revision. Learned advocate Mr.
Morakhia further submits that at the time of
dismissing the revision application, elaborate
discussion of the merits of the matter has been made
in a very graphical manner and the said fact is
clearly found out from the operative part of the
order passed by the Deputy Collector. He has
submitted that at the time of remanding the matter
back to the Mamlatdar, certain issues have been
pinpointed by the Deputy Collector and with a
specific direction to the Mamlatdar to strictly
adhere with the statutory provision of the Act in its
true spirit, the matter has been remanded back to the
Mamlatdar. Thereafter, during the course of remand
proceedings, the Mamlatdar had personally inspected
the disputed area and prepared a map and also
recorded the statements of the witnesses. Not only
that, thereafter, Panchnama of the place is also
prepared in presences of the Panchas. He has read the
Panchnama and submitted that both the Panchas have
described the position of the disputed area by
narrating the facts as mentioned in the said
Panchnama and it is true that both the Panchas have
narrated different version but the resultant effect
and outcome of the say of the Panchas would clearly
go on to show that the subject way is used and
utilized by the respondents - original plaintiffs
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since last many decades and therefore after
considering and appreciating all those documents and
after spot inspection, the Mamlatdar concerned has
passed the order and therefore the said order is not
required to be interfered with at the hands of this
Hon'ble Court. It is submitted that so far as the
order of the Deputy Collector is concerned, he has
assigned detailed reasons in the operative part of
the order and therefore both the orders are just,
legal and valid and based upon the sound principle of
law and therefore interference of this Court is not
warranted.
8. Learned advocate Mr. Morakhia has further
submitted that in fact the private respondents herein
have filed FIR against the petitioners under the
provisions of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act and pursuant to
the registration of the FIR, investigation commenced
and during the course of investigation, investigating
officer has prepared Panchnama of place of
occurrence, wherein, the Panchas have, in very
categorical terms, stated that the way is found
available in the disputed area. Not only that,
initially, as per the directions issued by the
Mamlatdar, the Circle Officer had carried out
Panchnama of the place and also recorded statement of
one of the petitioners and one witness, wherein, he
has very categorically stated that though the way is
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not found available on record, the private
respondents herein are using the said way since last
many years to reach their field but after the
registration of the FIR by the respondents, the
petitioners have closed the said way. He submits that
so far as the argument canvassed by learned advocate
for the petitioners that once the order of the
Mamlatdar is quashed and set aside and matter is
remanded back to the Mamlatdar to decide it afresh,
the concerned revenue authority is not right in
taking into consideration the contents of the
Panchnama recorded at earlier point of time, it has
no legs to stand in view of the fact that whatever
documents available on record are required to be
taken into consideration by the concerned authority
at the time of appreciation of the evidence. He
submits that the revenue authorities have not
committed any error either of law and/or of facts,
which warrants any interference at the hands of this
Court.
9. Learned advocate Mr. Morakhia has further
submitted that during the course of hearing of the
proceedings before the concerned revenue authority,
photographs of the place have been placed on record,
wherein, way is found available and the said fact is
also fortified from the operative part of the order
of the Deputy Collector. He submits that at the time
of dismissing the revision application of the
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petitioners, the Deputy Collector has specifically
observed that the existence of subject way is proved
from the following facts:
(i) Pursuant to registration of FIR by the private
respondents against the petitioners herein, a
Panchnama of the place of occurrence has been carried
out by the IO, wherein, the existence of subject way
is found out;
(ii) In the statement of one of the petitioners
recorded by the Circle Officer on 15.01.2021, he has
admitted that though the subject way is not found on
record, permission was granted to the private
respondents herein to use the said way. However, as
the FIR is filed against the petitioners, they
informed the respondents herein not to use the
subject way, however, permission is given to other
agriculturists to use the said way. Thus, one of the
petitioners has admitted that the subject way is in
existence;
(iii)In the Panchnama carried out by the Circle
Officer on 15.01.2021, existence of subject way is
found out;
(iv) existence of subject way is also found out from
Google map;
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(v) photographs of the disputed area also suggest
existence of subject way;
(vi) In the Panchnama carried out by the Mamlatdar
himself on 15.09.2022, existence of subject way is
found out;
10. Learned advocate Mr. Morakhia has further
submitted that it is well settled that the Mamlatdar
is competent to remove the obstructions / impediments
created by any person for smooth usage of a way,
which is being used and utilized by the concerned
persons, although the way does not exist on record.
He, therefore, submits that the concerned revenue
authorities have not committed any error while
passing the impugned orders and therefore when the
concerned authorities have recorded concurrent
findings of fact, this Court may not have to
interfere with the said findings in exercise of
powers under Articles 226 and 227 of the Constitution
of India. He, therefore, submits that the petition
being devoid of merits is required to be dismissed.
11. Learned AGP Mr. Aditya Pathak has objected
present petition with vehemence and submitted that
essentially the dispute is between the private
parties and therefore State has a limited role to
play. He submits that in the matter of concurrent
findings of fact recorded by the authorities
concerned, the scope of interference of this Court is
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very limited. However, in response to the submission
canvassed by learned advocate for the petitioners
that the Mamlatdar has not followed the statutory
provisions of the Act itself and while dismissing the
revision application, the Deputy Collector has also
brushed aside said important aspect and dismissed the
revision and only on this ground the orders impugned
are required to be set aside, he has candidly
submitted that initially the Deputy Collector had
remanded the matter back to the Mamlatdar concerned
only on the said ground and thereafter once again
Mamlatdar has initiated the proceedings and passed
the impugned order, which is confirmed by the Deputy
Collector by a speaking order. He submits that at the
time of dismissing the revision application preferred
by the petitioners, the Deputy Collector has assigned
sufficient reasons and held that the way in question
is already in existence and said way is used and
utilized by the private respondents herein and said
way is closed by the petitioners. Learned AGP Mr.
Pathak has read the order passed by the Deputy
Collector and submitted that the Deputy Collector as
well as Mamlatdar have not committed any error of law
and/or facts apparent on the face of the record and
therefore this Court may not interfere with the said
view adopted by the concerned revenue authorities.
He, therefore, submits that petition may be
dismissed.
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12. Having heard learned advocates appearing for
both the parties and having considered the materials
placed on record, it transpires that the private
respondents herein are the original plaintiffs and
petitioners herein are the original defendants. It
also transpires from the record that the respondents
herein had instituted a suit under Section 5 of the
Act before the Mamlatdar against the present
petitioners, inter alia, alleging that the
petitioners had blocked the subject way, which was
being used and utilized by the petitioner since last
many years for the purpose of approaching their
agricultural field. The Mamlatdar dismissed the said
suit. The respondents assailed the said order before
the Deputy Collector by preferring revision
application. The Deputy Collector partly allowed the
said revision application and remanded the matter
back to the concerned Mamlatdar with a direction to
scrupulously follow the mandatory statutory
provisions of the Act. Therefore, once again, the
Mamlatdar had initiated the proceedings and
ultimately decreed the suit in favour of the private
respondents. Being aggrieved by the said order,
petitioners herein have preferred a revision
application before the Deputy Collector. However, the
said revision also came to be dismissed. Hence,
present petition is filed.
13. I have also considered the Panchnamas carried
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out at the instance of the concerned revenue
authorities, village map, photographs, statements of
the witnesses as well as orders passed by the
Mamlatdar and Deputy Collector. It is the case of the
petitioners that during the course of second round of
litigation, though the Mamlatdar himself had carried
out the Panchnama but quite contrary stand has been
taken by both the Panchas and therefore the Mamlatdar
ought not to have put reliance upon the contents of
the said Panchnama. The said contention could not be
sustained in view of the fact that the narration of
the story about the position of subject way is
disclosed by the Panchas in the Panchnama in
different version but the sum and substance of the
say of the Panchas crystallizes the position of fact
that the disputed way is in existence and used by the
respondents. Therefore, as such, there is no
variation found in the statement of the Panchas and
by no stretch of imagination it can be said that the
version narrated by the Panchas in the Panchnama are
quite contrary to each other. Moreover, not only in
the Panchnama carried out by the Mamlatdar himself
but in various other documents also the fact of
existence of subject way and its usage by the private
respondents and other villagers since last many years
has come on surface. Learned advocate for the
petitioners has emphatically submitted that at the
time of deciding the revision application, the Deputy
Collector has considered earlier Panchnama carried
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out by the Circle Officer, despite the fact that in
the first round of litigation, order passed by the
Mamlatdar has already been quashed and set aside.
There is no dispute about the said factual aspect of
the matter, however, at the time of deciding the
merit of the earlier revision application, the Deputy
Collector concerned jumped to the conclusion that the
Mamlatdar has not strictly adhered with the statutory
provisions of law and certain procedural flaws have
been found in conducting the earlier suit proceedings
by the concerned Mamlatdar and therefore by quashing
and setting aside the said order, matter has been
remanded back to the Mamlatdar to decide it afresh
after giving an opportunity of hearing to all the
parties with a specific direction to decide it as per
the procedure prescribed in the statute itself. Thus,
it is an admitted position of fact that the
reasoning/s recorded by the Mamlatdar in the earlier
order have not been taken into consideration by the
Deputy Collector. However, it does not mean that in
the second round of litigation, the Deputy Collector
cannot take into consideration the documents led by
the parties before the Mamlatdar concerned during the
course of first round of litigation. Moreover, at the
time of deciding the revision application, the Deputy
Collector has not only considered the contents of the
earlier Panchnama but he has also considered other
documents as well and jumped to the conclusion that
the way, which is sought for by the private
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respondents herein is already in existence and they
are using the said way since last many years and
therefore the impediments created by the petitioners
are required to be removed. It is pertinent to note
that, in the first round of litigation, the Deputy
Collector remanded the matter to the concerned
Mamlatdar for fresh adjudication with a direction
that the case be decided by following the statutory
and mandatory provisions of the Act. Thereafter,
Mamlatdar had carried out the proceedings and passed
the impugned order, which is confirmed by the Deputy
Collector by a well-reasoned and speaking order.
14. It is also pertinent to note that the Deputy
Collector dismissed the revision application of the
petitioners by a reasoned order by specifically
holding that the existence of disputed way is proved
from the following factual aspects:
(i) Pursuant to registration of FIR by the private
respondents against the petitioners herein, a
Panchnama of the place of occurrence has been carried
out by the IO, wherein, the existence of subject way
is found out;
(ii) In the statement of one of the petitioners
recorded by the Circle Officer on 15.01.2021, he has
admitted that though the subject way is not found on
record, permission was granted to the private
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respondents herein to use the said way. However, as
the FIR is filed against the petitioners, they
informed the respondents herein not to use the
subject way, however, permission is given to other
agriculturists to use the said way. Thus, one of the
petitioners has admitted that the subject way is in
existence;
(iii)In the Panchnama carried out by the Circle
Officer on 15.01.2021, existence of subject way is
found out;
(iv) existence of subject way is also found out from
Google map;
(v) photographs of the disputed area also suggest
existence of subject way;
(vi) In the Panchnama carried out by the Mamlatdar
himself on 15.09.2022, existence of subject way is
found out;
15. It is the case of the petitioners that they had
given permission to the private respondents to use
the disputed way, which is passing through their
agricultural field on account of cordial relationship
between them. However, the said way was not found on
record and therefore as a right, private respondents
cannot demand the said way, which is in fact not a
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public road. However, it is pertinent to note that
the revenue authorities have specifically dealt with
the said aspect and observed that private respondents
and other villagers have been using the disputed way
since last many years and therefore petitioners
cannot block the said way. Moreover, there is no
dispute with regard to the ratio laid down by the
Coordinate Bench of this Court in the decisions
relied upon by learned advocate for the petitioners,
however, looking to the peculiar facts of the
present, they would not be of any help to the
petitioners. It is also well settled that the scope
of interference of this Court in the matter of
concurrent findings of fact recorded by the concerned
authority is very limited. Thus, looking to the
overall facts and circumstances of the present case
and materials placed on record, I am of the
considered view that the Deputy Collector has not
committed any error while upholding the order of the
Mamlatdar.
16. In view of the aforesaid discussion, the
petition is required to be dismissed. Accordingly,
petition stands dismissed. Notice discharged.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
