Shaikh Zubair Shaikh Ghaffar & Anr. vs The Sub-Divisional Officer (SDO) & Ors.

Rule. Rule made returnable forthwith and heard finally by consent of the parties.

The Petitioners are the non-applicant in the proceedings initiated by Respondent Nos.5 to 7 herein, invoking Section 5(2) of the Mamlatdar's Courts Act, 1906 (the ‘Said Act, 1906’). The application has been filed by Respondent Nos.5 to 7 contending that the Petitioners who are the owners of Gut No.128 have caused obstruction to their right of way for approaching Gut No.122, which belongs to them. It is alleged that the obstruction is created in Survey Nos.127 and 128, as a result of which the Applicant were unable to approach their field. A spot inspection was conducted on 19^th September, 2025, by the Village Revenue Officer, Gondwadsa, Taluka Mahur, District Nanded. In the Panchanama, it is obsrved that in inquiry made by the Village Revenue Officer, no such road could be seen on the map or even on the 7/12 extract. It was only stated that the present Petitioners are obstructing the Respondents from approaching their field in Gut Nos.122, while passing through Gur Nos.127 and 128. A different road was proposed by the present Petitioners from Gut No.127, which goes from South to North. However, the use of this alternate road has been denied by the Respondents herein.

On the aforementioned background, the order is passed by the Tahsildar allowing the application filed by the Respondents herein by making available a road from Gut No.128 and the canal, which runs South to North and thereafter, which goes through Gut Nos.121 and 128, East to West, which further passes from the Bandh of Gut Nos.121 and 127 in North to South directions, directing the obstruction to be removed from the aforementioned road, if necessary by taking the aid of Police Authorities. This order was passed on 13^th October, 2025, which was challenged before the Sub-Divisional Officer, Kinwat (‘SDO’) by the Petitioners. The SDO, after hearing the respective parties vide order dated 6^th May, 2026, has rejected revision filed by the Petitioners and confirmed the order dated 13^th October, 2025 passed by the Tahsildar, Mahur. Thus being aggrieved by the two orders, i.e., the order passed by the Tahsildar as well as the SDO, the Petitioners have approached this Court.

The learned Advocate for the Petitioners, Mr.Abid Shaikh, submitted that the application filed by the Respondents is bad in law for non-joinder of the necessary parties. Although one Jabinabi Gaffar Shaikh and Sabir Gaffar Shaikh are co-owners of the Gut No.128, they have not been added as party to the proceedings. As a result of which, grave prejudice has been caused to the rights of the persons who have not joined necessary parties. It is contended that the co-owners cannot be burdened with easementary right of way without impleading them as party to the said proceedings. It is also submitted that by making available a road of 8 feet from the field owned by the Petitioners has curtailed their area of operation of agricultural field to a great extent, since their holding itself is only to the extent of 0.54 R. It is submitted that both the Courts below have ignored the fact that the Panchanama dated 14^th July, 2025, does not disclose any road through Gut No.128.

He further submitted that the Tahsildar while passing the order impugned has referred to the order dated 6^th September, 1994, to form the basis of his order, is in fact not traceable in the records of the Tahsil Office. He submitted that the right of way under the Indian Easements Act, 1882, is a right of necessity and not mere convenience, when the alternate road is available, the grant of easementary right for the convenience or parties from the private agricultural land, is not contemplated under the scheme of the Said Act, 1906.

It is submitted that, most importantly, the application filed by the Respondents does not disclose any cause of action, as to on which a specific date the cause of action accrued to the Respondents herein. More particularly, in view of Section 5(3) of the Said Act, 1906, which mandates that no suit shall be entertained under the Said Act, 1906 unless it is brought within six months from the date on which the cause of action arose.

It is submitted that the order has been passed by the Tahsildar without actually inspecting the site and ignoring the alternate road suggested by the Petitioners. According to him, granting a road of 200 meters to 300 meters through standing crops, when alternate road of 40 meters to 60 meters available, is unreasonable and arbitrary. He submits that inspite of raising all these issues before the Tahsildar, Mahur as well as SDO, Kinwat, both the Authorities have failed to take into consideration the crucial aspects of the matter and has passed the order impugned. Thus, according to him, on the aforementioned background, both the impugned orders become unsustainable and, therefore, are required to quashed and set aside.

Per-contra, the learned Advocate for Respondent Nos.5 to 7 submits that although the Petitioners have contended that the alternate way is available to them, no such alternate way exists for the use of the Respondents. He submits that in fact in the previous round of litigation when similar application was filed by the Respondents, the Tahsildar has allowed the application and accordingly the road was cleared in year 1994. This order passed in the year 1994, was subject matter of challenge in RCS No.42 of 1994, challenged by the predecessor claiming that no such road is in existence and alternate road is not available. The Regular Civil Suit filed by the Petitioners was dismissed on 30^th December, 1996, which was again subjected to challenge in RCA No.26 of 1997, which was also dismissed on 15^th February, 1999. According to his information, even a second appeal was preferred by the Petitioners in this Court, is dismissed. According to the Respondents, except the road in question, no road is available to the Respondents and they are using the said road since long. It is submitted that a canal passes through Gut No.128 and beside the canal there is a road, which runs in South to North direction and it goes further over the common Bandh of Gut Nos.121 and 128, which runs East to West and thereafter it goes from the common Bandh of Gut Nos.128 and 127, which again goes in South to North direction. This road is being blocked at the entry point itself. According to them, the road beside the canal is in existence, but is being obstructed by the Petitioners due to which the Respondents herein are unable to approach their fields. He submitted that it is evident from the Panchanama that the Petitioners have obstructed the use of said land, therefore, the Tahsildar has rightly passed the order, which is also upheld by the SDO, hence no interference is warranted in the order passed by the SDO as well as the Tahsildar.

The learned AGP, Mr.Hoke Patil, appearing for Respondent Nos.1 and 2 submitted that when the application was made by Respondents herein for removal of obstruction for their approach to Gut No.122 of village Gondwadsa, Taluka Mahur, District Nanded from the documents produced by Respondent Nos.5 to 7, it was found that in RCA No.26 of 1997, the Additional District Judge, Nanded had confirmed the Judgment of Joint Civil Judge, Junior Division, Kinwat in RCS No.42 of 1994, dated 30^th December, 1996, thereby the order of Tahsildar, Kinwat, directing removal of obstruction from the suit land towards Gut No.122 obstructed by the Petitioners, was confirmed vide order dated 15^th February, 1999.

It is submitted that on the application filed by Respondents, the Tahsildar, Mahur has called report from the Circle Officer, Sindkhed and the Village Revenue Officer, Sajja Gondwadsa. Accordingly the Circle Officer has submitted his report alongwith Panchanama dated 14^th July, 2025. It is submitted that during the inspection obstruction could not be removed due to lack of consent, therefore, the hearing was conducted for deciding the application. According to him, even though in the Panchanama, Circle Officer reported that cart-way was not shown in map as well as in the 7/12 extract. The Panchas reported that the concerned applicant has been using easementary way passing through Gut No.128. The Panchanama, therefore, confirms the existence of easementary way. Since the dispute has been already decided by the appropriate Court, the Tahsildar, Kinwat has issued order to remove encroachment from Gut Nos.127 and 128 and provide passage for land Gut No.122 vide order dated 6^th September, 1994, which was further confirmed upto the decision of the Additional District Judge, who recorded that cart-way exists along North and the West of Survey No.128 for movement towards Survey No.122. A fair opportunity was given to all the parties for hearing application dated 26^th May, 2025 and after taking into consideration, the stand of the respective parties, the order has been passed by the Tahsildar, Mahur. He submits that in view of the various rounds of litigation between the parties, it is established that their exists a pathway towards Gut No.122 from Gut No.128, which has been obstructed by taking crops by the Petitioners herein.

After hearing the parties and going through the documents placed on record, it appears that the Petitioners have raised an objection about non-disclosure of cause of action by the Respondents while filing the application under Section 5 of the Said Act, 1906. More particularly, Section 5(3) and (4) of the Said Act, 1906, is reproduced hereunder, which reads thus :

Upon perusal of the aforementioned provision, it is evident that any application/suit is required to be filed within period of six months from the date of cause of action and the cuase of action is deemed to have arisen on the day on which there is an impediment, disturbance or obstruction attempted. Upon perusal of the application filed by the Petitioners dated 26^th May, 2025, a vague statement is made that there was some obstructions to the right of way made by the Petitioners previously, against which they had already approached the Competent Court, which was decided in their favour and inspite of which the obstruction caused by the Petitioners has not been removed, therefore, an application is filed addressing the Tahsildar to remove the obstruction. In this vague application, no details about the date, time and place at which such obstruction is made by the Petitioners. It only refers to the previous obstruction that was caused and which was already redressed by the Competent Court by deciding the matter in favour of the Respondents.

Even the Tahsildar has not passed a reasoned order, he has placed reliance on the order passed by the District Court, Nanded to hold that there was a road in existence as claimed by the Respondents. The findings in respect of Panchanama conducted on 14^th July, 2025, appears to be contrary to the contents of the Panchanama. Upon going through the Panchanama it contains specific observation that when inquiry is made on the basis of the application, no road could be found on 7/12 extract or even on the map. Thus, the finding regarding the existence of road, is actually contrary to the contents of the Panchanama. It also need to be appreciated that the Respondents have failed to join all the co-owners of Gut No.128 as party to the proceedings. As a result of the order passed against the co-owners has caused grave prejudice and injustice to them. Even the SDO in his order dated 6^th May, 2026 has failed to discuss and adjudicate upon the issue of non-joinder of necessary party and availability of alternative road. The SDO has mechanically affirmed the order passed by the Sub Ordinate Authority without application of mind and without assigning proper reasoning.

Pertinently, the Panchanama dated 14^th July, 2025 an identifies alternate way including a route through Survey Nos.127 and 128. Since more convenient and alternate road exists grant of road through a private agricultural land would be impermissible. Since the application filed by the Respondents is devoid of cause of action and suffers from failure of non-joinder of necessary parties not having brought within six months of cause of action, the ordes passed thereon are void ab-initio. Moreover, the application has been allowed by the Tahsildar without a reasoned order, which has been confirmed by the SDO.

Thus, in my view, in the wake of above observations, both the orders passed by the Tahsildar, Mahur dated 13^th October, 2025 and Sub-Divisional Officer, Kinwat dated 6^th May, 2026 deserve to be quashed and set aside.

Accordingly, the Writ Petition is allowed in terms of Prayer Clause [B].

Pending Civil Application does not survive and stands disposed off.