Gujarat High Court
Rabari Punjiben Govabhai vs Patel Ragnathabhai Malaji on 6 April, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/190/2026 CAV JUDGMENT DATED: 06/04/2026
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Reserved On : 19/02/2026
Pronounced On : 06/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 190 of 2026
In R/SPECIAL CIVIL APPLICATION/8598/2025
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL
EVIDENCES) NO. 1 of 2026
In R/LETTERS PATENT APPEAL NO. 190 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2026
In R/LETTERS PATENT APPEAL NO. 190 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
=============================================
Approved for Reporting Yes No
✔
=============================================
RABARI PUNJIBEN GOVABHAI & ANR.
Versus
PATEL RAGNATHABHAI MALAJI & ORS.
=============================================
Appearance:
MR ANSHIN DESAI, SR. ADVOCATE assisted by MR MANOJ
SHRIMALI(2331) for the Appellant(s) No. 1,2
MR TUSHAR L CHAUHAN(12449) for the Appellant(s) No. 1,2
MS HETAL PATEL, AGP for the Respondent(s) No. 8
MR PERCY KAVINA, SR. ADVOCATE assisted by KAUSHAL H
PATEL(9328) for the Respondent(s) No. 3
MR SP MAJMUDAR(3456) for the Respondent(s) No. 3
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
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NEUTRAL CITATION
C/LPA/190/2026 CAV JUDGMENT DATED: 06/04/2026
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CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. This Intra-court appeal is directed against the judgment and order dated 05.01.2026 passed by the Writ Court dismissing the writ petition holding that the order impugned passed under the Mamlatdars' Courts Act' 1906 (for short, "the Act' 1906") is a well considered decision within its jurisdiction based on appreciation of evidence and free from perversity or patent illegality. While saying so, the learned Single Judge has kept it open for the parties to establish their easementary rights through appropriate civil proceedings, if they are left with any grievance.
2. We may note, at the outset, that the proceedings giving rise to the present appeal were initiated under Section 5 of the Act' 1906 and are summary in nature. Any decision under the Act' 1906 does not have any bearing on the substantive civil rights of the parties, which remain open to be agitated before the Civil Court.
3. It is noted by the learned Single Judge in the judgment impugned that the Mamlatdar and the Deputy Collector both have concurrently found existence of a right of way through the shortest and traditionally used route and such finding do not suffer from perversity and, as such, cannot be interfered in the writ jurisdiction.
4. The findings in the judgment impugned are that the dispute essentially pertains to a right of way claimed by the Page 2 of 11 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Tue Apr 07 2026 Downloaded on : Wed Apr 08 02:45:54 IST 2026 NEUTRAL CITATION C/LPA/190/2026 CAV JUDGMENT DATED: 06/04/2026 undefined plaintiffs / private respondents therein for ingress and egress to their agricultural land bearing survey Nos.83, 84 and 85, allegedly obstructed by the petitioners, who are owners of adjoining survey Nos.86 and 87. The Mamlatdar, in its order dated 01.04.2025, found that a traditional access road exists passing through survey Nos.86 and 87 and leading to the plaintiffs' / private respondents' land bearing survey Nos.83, 84 and 85. The physical inspection revealed obstructions made by way of fencing, wooden planks, crop plantation and ploughing on the said road, clearly confirming recent interference by the petitioners / appellants herein (owners of survey Nos.86 and 87).
5. It was noted by the Writ Court that the plea of the original petitioners / appellants herein of an alternative route was rejected by the Mamlatdar noticing that the alleged route was unusable route and unsupported by any documentary evidence. Old village maps and revenue records corroborate the existence of the road as a long-standing customary pathway, and even prior ownership testimony confirmed its historical use. The Mamlatdar in the summary proceedings conducted by it under Section 5(2) of the Act' 1906 has clearly held that the road is a proven traditional access road of the respondents and that the petitioners have unlawfully obstructed it, warranting removal of the obstruction.
6. The Writ Court records that in a further challenge before the Deputy Collector, it was found that the Mamlatdar had conducted a proper site inspection, considered oral and documentary evidence, and rightly concluded that a Page 3 of 11 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Tue Apr 07 2026 Downloaded on : Wed Apr 08 02:45:54 IST 2026 NEUTRAL CITATION C/LPA/190/2026 CAV JUDGMENT DATED: 06/04/2026 undefined traditional public access road exists through Survey Nos. 87, 86, 85, 84, and 83.
7. These findings returned by the learned Single Judge in the judgment impugned are sought to be assailed by Mr.Anshin Desai, the learned Senior Counsel for the appellants with the submissions that a bare perusal of the village map at page No. '130' of the paper-book would show that there was no way existed. There was nothing to prove the traditional road and only two witnesses have been relied, whose statements go either way. There is no clarity in the finding of the Mamlatdar that the plaintiffs have no alternative way.
8. Referring to the observations made in the order of the Mamlatdar at page No. '261' of the paper-book, it was submitted by the learned Senior Counsel for the appellants that the Mamlatdar himself has recorded the contradictions in the statement of the Panchas and therefore, has committed a grave error in relying upon the Panchnama dated 08.11.2024 to hold that a traditional way existed over the disputed plots and in holding that no alternative way existed. The arguments is that out of four Panchas, two stated that no alternative way exists, whereas the other two stated that alternative way existed through the farm near Naroli Village.
9. In these fact and situation, the findings of the Mamlatdar cannot be sustained. The Deputy Collector, in rejecting the appeal, committed an error in ignoring this material aspect of the matter.
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10. The grounds of challenge to the order of the Writ Court are that the Mamlatdar's jurisdiction under Section 5(2) of the Act' 1906 is summary in nature and confined to cases involving obstruction to public road or customary way. Whereas, the plaintiffs / private respondents from their own pleadings, agitated private easementary right over the petitioners' / appellants' private lands, which can only be adjudicated by the Civil Court. The finding of existence of alleged way is not supported by the village map and the revenue records. The learned Single Judge has committed an error apparent on the fact of the record in holding so.
11. From the discussion made in the order of the Mamlatdar itself, it is evident that two alternative routes are available to the respondents, one is through survey No.91 connecting survey No.82 and passing through survey Nos.83 and 85 through Village Naroli to Betaliya. No relief, as such, could have been granted by the Mamlatdar based on convenience of the plaintiffs.
12. Besides that, there are various objections taken about the procedure adopted by the Mamlatdar. The submission is that the request of the petitioners for carrying out fresh Panchnama with videography due to serious factual dispute about the existence of alleged way was rejected on 06.11.2024, which amounts to violation of principles of natural justice.
13. Reliance is placed on the decision of this Court in the case of Patel Bhavikkumar Praveenbhai & Ors. v.
Page 5 of 11 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Tue Apr 07 2026 Downloaded on : Wed Apr 08 02:45:54 IST 2026NEUTRAL CITATION C/LPA/190/2026 CAV JUDGMENT DATED: 06/04/2026 undefined Harmanbhai Maganbhai Bhoi & Ors. [Letters Patent Appeal No.1558 of 2024 decided on 21.10.2024] to submit that the Division Bench has set aside the order passed by the Mamlatdar therein being without application of mind, without conducting proper inquiry and following prescribed procedure under the Act' 1906. In the said facts, the Mamlatdar granted the right of way over the land of appellants therein by relying only upon three documents, namely affidavit of the original plaintiff, village map and Panchnama. This Court has held that there was no clear finding as to the existence to the way or obstructions and the order suffers from improper appreciation of evidence. The matter, therefore, has been remitted back to the Mamlatdar for fresh consideration.
14. Mr.Percy Kavina, the learned Senior Counsel for the private respondents, in rebuttal, would argue that the disputed way existed since ancient times and was not only used by the private respondents but their predecessors as well. The disputed way for ingress and egress was passing from Village Betaliya (Gauchar) on the western side, proceeding southwards through survey No.91 and then survey Nos. 86 and 87 belonging to the petitioners and thereafter, entering survey Nos.83, 84 and 85.
15. It was vehemently argued that the Panchnama dated 08.11.2024 records the existence of the disputed way and the obstructions caused by the petitioners and that no practical alternative way from Village Naroli was shown to have existed either by the petitioners or by any Panchas. It was argued that the title and the revenue records, including the registered Page 6 of 11 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Tue Apr 07 2026 Downloaded on : Wed Apr 08 02:45:54 IST 2026 NEUTRAL CITATION C/LPA/190/2026 CAV JUDGMENT DATED: 06/04/2026 undefined sale deed indicated the existence of the disputed way and the statement of seller recorded on 08.11.2024 during Panchnama, also confirms that the way existed since ancestral times, even prior to the sale to the petitioners' predecessors.
16. In the cross-examination, the petitioner No.1 has admitted that though the road may not appear on the map, it exists on the ground. The suit was filed within limitation and the Mamlatdar is expressly empowered to protect the right of way and removal of obstructions under the Act' 1906. In any case, the claim of the plaintiffs / private respondents was not of seeking easementary rights from the private lands of the petitioners / appellants herein, rather remedy was sought seeking removal of obstructions to the private way existed over the long period of time.
17. Reliance is placed on the decision of the Apex Court in the case of Mrs.Labhkuwar Bhagwani Shaha & Ors. v. Janardhan Mahadeo Kalan & Anr. [1982 (3) SCC 514] and Vankatlal G. Pittie & Ors. v. Bright Bros. (Pvt.) Ltd. [1987 (3) SCC 558] on the scope of interference by the High Court in the findings of fact returned by the competent court / authority.
18. Taking note of the rival submissions of the learned Senior Counsels for the parties and perused the record as well as the reasoning given by the Writ Court in the judgment impugned, suffice it to note that the Panchnama dated 08.11.2024 was carried out by the Mamlatdar himself in the presence of the parties. There were four Panchas, whose Page 7 of 11 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Tue Apr 07 2026 Downloaded on : Wed Apr 08 02:45:54 IST 2026 NEUTRAL CITATION C/LPA/190/2026 CAV JUDGMENT DATED: 06/04/2026 undefined statements were recorded in the Panchnama and though there was a contradictions in their statements about alternative way existed through farm near Naroli Village, but there was no dispute regarding the existence of the disputed way.
19. The Panchnama categorically records existence of a way on the left side of survey No.85, adjoining survey No.86 and continuing southwards to survey No.83 and connecting survey No.85 to survey No.84. Obstructions such as wooden planks, castor and millet ploughing, cactus, etc. were found on the said way during the course of inspection by the Mamlatdar, as recorded in the Panchnama. Even the owner of Naroli Village, namely Patel Mulabhai Rajabhai, from whose land, the alternative way to the plaintiffs' lands was suggested by the petitioners herein, was examined and his statement was recorded which shows that the plaintiffs / private respondents herein have never used his farm and the way to the their lands is from Village Betaliya side. It is categorically recorded in the order of the Mamlatdar that the original petitioners / appellants herein have failed to prove the existence of an alternative way by bringing any material on record.
20. It was also noted by the Mamlatdar that as per revenue note No.172 dated 03.10.1994, survey No.87 was purchased by the appellant No.1 herein vide sale deed dated 02.06.1994. The previous owner namely, Rabari Okhabhai Jehabhai also stated before the Mamlatdar that the disputed way existed up to half of survey No.87 and then turned into survey No.86 and reached survey No.85 and the same is existing since the time of his paternal grandfather.
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21. The reasoning in the order of the Mamlatdar is that the village map appended at page No. '130' of the paper-book shows a way from north side of survey No.91 to north-east side of survey No.87 up to boundary of survey No.86. As per the village map, the Village Naroli begins after the land of the plaintiffs / private respondents indicating that the respondents' lands is within Village Betaliya. The petitioners / appellants have failed to prove any way from the boundary of Village Naroli to the respondents' lands.
22. These categorical findings recorded in the order of the Mamlatdar had been affirmed by the Deputy Collector noticing in its order that the Mamlatdar had carried out physical inspection of the site in question in the presence of the parties and has adopted due procedure prescribed under the Act' 1906 to recognize the right of way of the plaintiffs / private respondents herein.
23. These concurrent findings of fact based on the material on record and the evidence led by the parties has not been interfered with in the limited scope of inquiry under Articles 226 / 227 of the Constitution of India by the Writ Court. The only premise to assail the order of the Writ Court is that there was a possibility of alternative route available to the respondents, which was not explored by the Mamlatdar and that the request of the petitioners / appellants herein for a fresh Panchnama with videography about the existence of alleged way was rejected on 06.11.2024.
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24. In any case, there is no dispute to the Panchnama dated 08.11.2024, appended at page No. '89' of the paper-book, which is signed by the parties and which was carried out by the Mamlatdar in the presence of four Panchas. The order passed by the Mamlatdar is based on the spot position duly recorded in the Panchnama carried out and prepared on 08.11.2024. Under the Mamlatdars' Courts Act' 1906, Section 5 empowers the Mamlatdar to remove or cause to be removed any impediment erected otherwise then due authority of law on any land used for agriculture, and to give immediate possession of such lands by determination of rights of the parties.
25. As per the procedure prescribed in Section 19 of the Act' 1906, the Mamlatdar has power to summon the parties, examine any witnesses and call for any document to be produced by either of the parties. If he considers it expedient in the interest of justice and if he thinks fit, the Mamlatdar can make personal inspection of the property in dispute in the presence of and after due notice to the parties. In the memorandum prepared on the spot inspection, the Mamlatdar shall record any relevant fact observed at such inspection and such memorandum shall form part of the record of the case.
26. While conducting the proceedings under the Act' 1906, the Mamlatdar shall have to prepare the memorandum of substance of the evidence of each witness as examination of the witness proceeds and briefly record his reasons for his findings. In any case, the proceedings under the Act' 1906 are summary in nature and as clarified under Section 22 of the Page 10 of 11 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Tue Apr 07 2026 Downloaded on : Wed Apr 08 02:45:54 IST 2026 NEUTRAL CITATION C/LPA/190/2026 CAV JUDGMENT DATED: 06/04/2026 undefined Act' 1906, the order issued by the Mamlatdar for removal of any impediment or giving or restoring possession or use to any party will be subject to the decision of the competent civil suit, in any suit or proceedings brought before the Civil Court.
27. In the facts of the present case, when we found that the Mamlatdar has conducted summary proceedings as per the procedure prescribed under the Mamlatdar' Courts Act' 1906, we cannot attach any error to the decision of the learned Single Judge in refusing to interfere with the concurrent findings of fact about existence of the disputed way of the plaintiffs / private respondents right from the time of their predecessor.
28. The present appeal, therefore, deserves to be dismissed being devoid of merits and is, accordingly, dismissed with no order as to costs.
29. Pending civil applications stand disposed of.
(SUNITA AGARWAL, CJ ) (D.N.RAY,J) SAHIL S. RANGER Page 11 of 11 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Tue Apr 07 2026 Downloaded on : Wed Apr 08 02:45:54 IST 2026