[Cites 13, Cited by 0]
Gujarat High Court
Patel Prahladbhai Revabhai vs Patel Revabhai Virchandbhai on 11 March, 2026
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C/SCA/18784/2022 CAV JUDGMENT DATED: 11/03/2026
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Reserved On : 24/02/2026
Pronounced On : 11/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18784 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
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PATEL PRAHLADBHAI REVABHAI & ORS.
Versus
PATEL REVABHAI VIRCHANDBHAI & ORS.
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Appearance:
MR R G CHAUDHARY(6428) for the Petitioner(s) No. 1,2,3,4,5
MS. SURBHI BHATI, LD. ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 6,7
MR AMIT N CHAUDHARY(5599) for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. By this writ application under Article 226 of the
Constitution of India, the writ applicants have prayed for the
following reliefs;
"(A) This Hon'ble Court may be pleased to admit and
allow this petition;
(B) This Hon'ble Court may be pleased to issue a writ of
mandamus or any other appropriate writ, order or
direction in the nature of mandamus, quashing and
setting aside the order dated 09.05.2022 and the order
dated 30.06.2021 passed by respondent no.6 and 7 at
Annexure 'A' and 'B' granting the suit no.03/2020 and
rejecting the Revision Application No.04/2021 and direct
the respondent no.1 to 5 to not to interfere in the way
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which are being used by the present petitioner situated in
old survey no.65/1 which is shown in the broken line in
the map and also situated in between old survey nos.70
and 65/1,
(C ) Pending admission, hearing and final disposal of
this petition, this Hon'ble Court may be pleased to stay
execution, implementation and operation of the order
dated 30.06.2021 and the order dated 09.05.2022
passed by the respondent 6 and 7 at Annexure 'A' and 'B'
and direct the respondent no.1 to 5 not to interfere in the
way which are being used by the present petitioner.
(D) This Hon'ble Court may be pleased to grant any
other and further relief which this Hon'ble Court may
deem just, fit and proper."
2. Facts, in brief, giving rise to the filing of the present
application, may be summarized as under;
2.1 It is the case of the original plaintiffs-respondents herein
that they are the joint co-owners and occupiers of an
agricultural land being Survey No.66 (New Survey No.129) and
Survey No.67 (New Survey No.128) situated at village:
Mahmadpur, Taluka: Visnagar, District: Mehsana. It is further
the case of the original plaintiffs-respondents that there is a
'Naliyu' (a small unsurfaced road) on the northern side of
Survey Nos.66 and 67. It is further the case of the original
plaintiffs-respondents that this 'Naliyu' (new No.448) is shown
in the village map being used by the plaintiffs for ingress and
egress to go to their field with plough, bullock carts, tractors
etc. It is further the case of the original plaintiffs-respondents
that there is also a 'Naliyu' on the northern side of old Survey
No.65, however, the original defendants-writ applicants have
closed it by embedding cactus, and therefore, the original
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plaintiffs-respondents have filed the suit bearing suit
no.03/2020 before the Ld. Executive Magistrate, Visnagar
under Section 5(2) of the Mamlatdar Courts' Act, 1906. The
said suit is allowed by the Executive Magistrate, being
aggrieved by which, the original defendants-writ applicants
preferred a revision application being Revision Application
No.04/2021 under Section 23(2) of the Act, 1906 before the Ld.
Sub Divisional Magistrate, Visnagar, however, the said revision
application has been dismissed by the Ld. Sub Divisional
Magistrate, being aggrieved by which, the original defendants-
writ applicants have filed the present writ application.
3. Learned advocate Mr. R.G.Chaudhary appearing for the
writ applicants submits that the impugned orders passed by
both the revenue authorities are illegal, unjust, arbitrary and
contrary to the provisions of law, and as such, deserves to be
quashed and set aside. He further submits that the order
passed by the Mamlatdar seems to be ambiguous in nature, as
the same does not speak whether the prayer made in the
application was granted or rejected. Learned advocate Mr.
Chaudhary also submits that the Mamlatdar has not
appreciated the documentary evidences produced on record
by the writ applicants in its true sense and proper perspective,
and thereby has committed a grave error of law in passing the
impugned order, as also by the Assistant Collector while
confirming the same. Learned advocate Mr. Chaudhary further
submits that by passing the impugned orders, both the
revenue authorities have created a new right of way, which
even otherwise, they are not empowered to do by the statute.
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He also submits that the Mamlatdar had also made a spot
inspection and carried out Panchnama as also recorded the
statements of the witnesses, however, in the Panchnama has
not mentioned anything about the non-existence of the 'Naliya'
at the northern side of Survey No.65.
4. Learned advocate Mr. Chaudhari further submits that
there is no such 'Naliya' in existence at the northern side of
Survey No.65, but it is a pedestrian way of the ownership of
the writ applicants being used by them to go to their field. He
submits that the entire Survey No.65 was owned by the father
of the writ applicants, which subsequently partitioned in five
survey numbers, i.e., Survey Nos.132 to 136, out of which,
Survey No.134 (old Survey No.65/1) is of the ownership of the
writ applicants being used by them as a pedestrian way. The
said pedestrian way starts from public road Denap to Chhogala
as shown in the map. The said pedestrian way starts from the
public road and ends at 'Naliya' which is situated on the
northern side of old Survey Nos.66 and 67, a hand made map
showing the disputed way and the topography of the survey
numbers is appended along with the memo of the application.
The authorized Government map of Mahmadpur village with all
survey numbers, pedestrian way and 'Naliya' is also appended
along with the memo of the application. Learned advocate Mr.
Chaudhari further submits that there is one broken line shown
in the said map, which indicates the pedestrian way, and if the
said map is to be seen, there is no any such 'Naliya' on the
northern side of old Survey No.65 in the map. Learned
advocate Mr. Chaudhari also submits that the wife of one of
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the original plaintiffs, namely, Bhumikaben Mukeshbhai Patel
has lodged a criminal complaint before the Visnagar Taluka
Police Station, pursuant to which, her statement came to be
recorded, wherein she has stated that when there was no new
road created to go to Chhogada village, they were using one
'Naliya' (Denap Kharabo land) passing through village Denap
to access to their agricultural field, and therefore, the claim
that the plaintiffs were using the Government 'Naliya' located
on the northern side of old Survey No.65 is proved wrong.
5. Learned advocate Mr. Chaudhari further submits that the
respondents are trying to create a new right of way because
they intend to do so as there is a public road on the eastern
side of old Survey No.65 and respondents want to create a new
right of way so that they can have easy entry on the public
road which passes from village Denap to Chhogala village. He
also submits that the respondents are having a way for ingress
and engress to access to their old survey Nos.66 and 67 from
'Denap Kharabo' (open waste land) of village Denap. Thus,
there is already a way in existence for the respondents to
access to their agricultural field, however, the respondents are
trying to create a new right of way by filing a suit before the
Mamlatdar on false and frivolous grounds, and the Mamlatdar
also, without application of mind, has passed the impugned
order. He further submits that before the Mamlatdar also, the
respondent Nos.1 to 5 have produced copy of village Form
No.7 of Old Survey Nos.66 and 67 (new Survey Nos.128 and
129) wherein it is clearly shown that 'Naliya' ends at the end of
Survey Nos.66 and 67, which has not been taken into
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consideration by the Mamlatdar, and has passed the impugned
order without proper application of mind. Learned advocate
Mr. Chaudhari further submits that in the said map, one dotted
line is shown passing near Survey No.65, which makes the
position more clear that there is a pedestrian way passing near
Survey No.65, and not a Government 'Naliya'. He submits that
though there is a clear cut description of the pedestrian road
at the northern side of Survey No.65, yet the Mamlatdar has
completely failed to take into consideration the said evidence
in its true sense and proper perspective, and thereby
committed a grave error by holding that the said road is a
Government 'Naliya' road. Thus, the view adopted by the
Mamlatdar is erroneous, illegal, perverse and against the
documents available on record, and as such, deserves to be
quashed and set aside.
6. Learned advocate Mr. Chaudhari further submits that the
DILR, Mahesana has wrongly interpreted the broken lines
shown in the map. The DILR has stated that it is a 'Petamarg'
(subway) at the northern side of old Survey No.65 in his letter.
He further submits that the DILR has misinterpreted this
terminology because one dotted line, i.e, pedestrian way and
two dotted lines i.e., 'Petamarg' has already been explained in
the map. He also submits that there is no question regarding
the ownership of pedestrian way because it is owned by the
present writ applicants in view of partition took place in 1960,
despite the same, the DILR has diverted the entire dispute and
states about the ownership of the pedestrian way. Learned
advocate Mr. Chaudhari further submits that the Mamlatdar
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has not taken into consideration the very important document,
i.e, the map, and thereby has committed a grave error while
deciding the dispute between the parties regarding right of
way. He further submits that even the Mamlatdar has not
followed the mandatory procedure as laid down in the
Mamlatdar's Courts Act, 1906. He submits that the Mamlatdar
has not followed the provisions of Sections 7 and 11 and
Section 19 of the Mamlatdar's Courts Act, which are mandatory
in nature. He also submits that the Mamlatdar has not followed
the mandatory procedure as laid down in the aforesaid
provisions, and without leading any oral evidence and without
framing any issue in the suit, straight way delivered a
judgment on his personal whims. He further submits that the
aforesaid provisions are mandatory in nature and the
Mamlatdar is duty bound to comply with it as held by this Court
in Vallabhbhai Vastabhai Kukadiya vs. Dy. Collector, Botad
reported in 2022 (2) GLH 469.
7. Learned advocate Mr. Chaudhari, in the last, submits that
any judgment and/or order passed by any competent authority
or the court of law, must contain a concise statement of the
case, the points for determination, the decision thereon, and
the reasons for such decision. Here in the case on hand, if the
order passed by the Mamlatdar is perused, the same does not
contain any of the above stated points, and thus, seems to be
ambiguous in nature, and therefore, deserves to be quashed
and set aside.
8. In such circumstances, referred to above, learned
advocate Mr. Chaudhari prays that there being merit in the
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present application, the same be allowed, and the relief, as
prayed for, be granted.
9. Per contra, the present application has been vehemently
opposed by learned advocate Mr. Amit Chaudhary appearing
for the contesting respondents. He submits that no error, not
to speak of any error of law, could be said to have been
committed by both the revenue authorities while passing the
impugned orders. Learned advocate Mr. Chaudhary further
submits that the findings recorded by both the revenue
authorities below are concurrent in nature, and no stay has
been granted by this Court as on date. He also submits that
the present writ applicants are the head strong persons and
have no respect towards the law, because despite two orders
having been passed by two revenue authorities against them,
yet they have blocked the subject way by constructing a wall
over there. Learned advocate Mr. Chaudhary further submits
that even in the suit before the Mamlatdar, the writ applicants
have not raised any contention with regard to any alternative
road available to be used by the contesting respondents.
Learned advocate Mr. Chaudhary also submits that as per the
report of the DILR, there is a Government 'Naliya' at the
northern side of the old Survey No.65, and as such, the writ
applicants cannot claim any right on a Government road, and
even otherwise, if the writ applicants have any grievance with
regard to their right over the subject way, then they may file
civil suit before the competent civil court. He further submits
that the DILR has given a clear opinion that according to
record of 'Prati Book', the subject road is not pedestrian road
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but is a Government 'Naliya', and thus, it appears that the writ
applicants are claiming their ownership over the Government
road. Moreover, since certain discrepancies were found in the
revenue record during the proceedings before the Mamlatdar,
the Mamlatdar, with the consent of both the sides, called for
the report of the DILR with regard to the actual position of the
disputed survey numbers, a copy of the said correspondence
addressed to the DILR is also placed on record, who upon
receipt of such letter, verified the old record, and upon such
verification, jumped to the conclusion that there is Vigha 0-1
Vasa 'Subway' road (Government waste land) passing between
the northern side of Survey No.65 and southern side of Survey
No.70. Accordingly, the DILR ultimately gave its opinion that
there exists a Government 'Naliya' at the northern side of
Survey No.65.
10. Learned advocate Mr. Chaudhary also submits that the
writ applicants have challenged the order of the Mamlatdar
before the Deputy Collector, however, the writ applicants have
not raised any contention with regard to non-compliance of the
mandatory provisions and the framing of the issues. He also
submits that even from the Government map, it appears that
there is 'Naliya' on the northern side of Survey No.65, and is
very wide as compared with 'Naliya' passing from Survey
Nos.66 and 67, and as such, it is clear from the said map that
there is no any such pedestrian way, but a Government
'Naliya' road. Learned advocate Mr. Chaudhary further submits
that the DILR has rightly given opinion which has not been
challenged by the writ applicants before any court uptill now.
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He submits that the DILR has given a clear cut opinion that a
Government 'Naliya' way is passing through the field of the
writ applicants and the said 'Naliya' is in existence since many
years. Learned advocate Mr. Chaudhary further submits that
after carrying out Panchnama and after taking into
consideration the opinion submitted by the DILR that there is a
'Naliya' (Government road) situated at the northern side of
Survey No.65, the Mamlatdar has passed the impugned order,
subsequently confirmed by the Deputy Collector, and as such,
the findings recorded by both the revenue authorities, being
concurrent in nature, do not require any interference at the
end of this Court. To buttress his submissions, learned
advocate Mr. Chaudhary relies upon the following decisions;
"(i) In the case of Bhemas Dharambhai Harijan (Sadhu) vs.
Satuben Kajabhai Harijan, reported in 2022 Supreme (Guj) 697;
(ii) In the case of Patel Bhavikkumar Praveenbhai vs.
Harmanbhai Maganbhai Bhoi, reported in 2024 Supreme
(Online) (Guj) 24576;
(iii) In the case of Nagarbhai Bhikhabhai Kedva vs. Deputy
Collector, Banaskantha, reported in (2023) 3 GLH 583;
11. Learned AGP Ms. Surbhi Bhati has also objected the
present application. She submits that the dispute involved in
the present case is essentially between the private individuals,
and the Government has very limited role to play. However,
looking to the materials available on record, it appears that
the impugned orders passed by both the revenue authorities
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are just, fair and reasonable, and therefore, do not require any
interference at the end of this Court.
12. Heard the learned counsel appearing for the respective
parties and examined the record.
13. The dispute involved in the present matter seems to be
with regard to the pathway to be used by the contesting
respondents herein to reach to their agricultural field. It
appears from the record that the contesting respondents filed
a suit before the Mamlatdar, claiming that the writ applicants
herein have closed the said pathway by creating obstructions.
It further appears that upon the said application being filed,
the Mamlatdar initiated proceedings under Section 5(2) of the
Mamlatdar's Courts Act. It also appears that during the said
proceedings, the Mamlatdar paid visit to the disputed site and
prepared a Panchnama, and as per the said Panchnama, there
is a 'Naliya' (Government road) passing through the field of the
writ applicants being used by the contesting respondents since
long. It further appears that the Mamlatdar, after obtaining
consent from both the sides, also thought fit to seek opinion
from the office of the DILR, who vertified the old record and
gave an opinion that a Government road (Naliya) is situated at
the northern side of the Survey No.65, and after taking into
consideration the said report as well as by making personal
inspection, the Mamlatdar ultimately passed the impugned
order, which in my opinion, has rightly so as per the
documents made available on record. From the Patri Book
annexed by the DILR along with its letter, which is also made
available on record in the present proceedings, it appears that
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the total area of Survey No.65 is Vigha 7-13, out of which,
Vigha 0-1 is a 'Kharabo' land (Government "Naliya' road).
Thus, con-joint reading of all the documents available on
record suggests that there is a Government 'Naliya'
(Government road) situated at the northern side of old Survey
No.65. In the aforesaid view of the matter, this Court is of the
opinion that the impugned orders passed by both the revenue
authorities are just and proper, and no error either
jurisdictional or otherwise can be said to have been
committed, and as such, no interference is warranted.
14. Moreover, the findings recorded by both the revenue
authorities are concurrent in nature being arrived at after
appreciation of the evidence made available on record. It is
settled law that when two or more revenue authorities reach to
the same conclusion regarding a factual dispute, such findings
are generally considered binding and not subject to re-
appreciation in writ jurisdiction. Unless the writ applicants
prove that the concurrent findings recorded by the authorities
below are perverse or based on no evidence, such findings
cannot be set aside in exercise of writ jurisdiction under Article
226 of the Constitution of India.
15. The powers under Articles 226 or 227 of the Constitution
of India may be exercised in cases occasioning grave injustice
or failure of justice such as when (i) the court or tribunal has
assumed a jurisdiction which it does not have, (ii) has failed to
exercise a jurisdiction which it does have, such failure
occasioning a failure of justice, and (iii) the jurisdiction though
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available is being exercised in a manner which tantamounts to
overstepping the limits of jurisdiction.
16. This Court in exercise of its jurisdiction under Articles 227
of the Constitution of India, cannot act like an appellate court.
Unless the writ applicants succeed in convincing this Court in
regard to the three ingredients as mentioned above necessary
to invoke the jurisdiction of this Court under Articles 226/227 of
the Constitution of India, the Court should be loath to exercise
such jurisdiction to differ with the reasons and the conclusion
arrived at by the competent authorities. As has been held in
the preceding paragraphs in this judgment, the writ applicants
have failed to show any perversity, illegality or jurisdictional
error in the orders impugned.
17. In view of the facts and circumstances enumerated
above, I do not find any perversity and illegality in the
impugned orders.
18. In the result, the present writ application fails and is
hereby rejected.
(DIVYESH A. JOSHI,J)
VAHID
