Vijay Sukhdeorao Sune vs Sub-Divisional Officer, Achalpur and Ors.

Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.

By way of this Writ Petition, the petitioner seeks to quash and set aside the judgment and order dated 20.10.2023, passed by the Sub-Divisional Officer, Achalpur, in Revenue Case No.14/MCA-05/2022-2023/Deourwada, whereby the revision filed by the Petitioner was rejected and the order dated 31.10.2022 passed by the Tahsildar, Chandur Bazar, granting a right of way to the Respondents, was upheld.

The factual matrix giving rise to the present petition is that respondent Nos.3 to 6 initiated proceedings against the petitioner under the Mamlatdar's Courts Act, 1906, before the Tahsildar, Chandur Bazar. The original appellants/plaintiffs sought access to a road through the subject agricultural land, relying entirely on a "संमती लेख" (Consent Letter) dated 22.07.2019. It was alleged that this Consent Letter was executed by the erstwhile owner of the land, one Smt. Kisanbai Daulatrao Wankhede, permitting them to use the access road. Along with the plaint, the respondents herein also filed an application for a temporary injunction.

The petitioner appeared in the proceedings and vehemently opposed the claim, asserting that he is a bona fide and absolute purchaser of the said agricultural land. The petitioner purchased the property from the very same Smt. Kisanbai Daulatrao Wankhede vide a duly registered Sale Deed dated 13.03.2019 for a total consideration of Rs.5,80,000/-. Crucially, the registered Sale-Deed in favour of the petitioner was executed well before the alleged Consent Letter dated 22.07.2019 came into existence.

During the pendency of the suit, the Tahsildar called for a factual enquiry report from the Talathi, Deourwada. Subsequently, both parties adduced their respective oral and documentary evidence. The Tahsildar, Chandur Bazar, after hearing the matter, passed an order on 31.10.2022, allowing the application of respondent Nos. 3 to 6 and directing the petitioner to remove all obstacles to provide a clear way through his agricultural land.

Aggrieved by the Tahsildar's order, the petitioner preferred a revision application before the Sub-Divisional Officer (SDO), Achalpur. Both parties filed their respective written notes of arguments. However, the Sub-Divisional Officer, Achalpur, vide the impugned order dated 20.10.2023, rejected the revision petition and upheld the Tahsildar's order.

During the pendency of the present Writ Petition subsequent execution proceedings were initiated by the respondents, necessitating an amendment to the pleadings. On 05.08.2024, the Deputy Tahsildar directed the implementation of the 31.10.2022 order. The respondents subsequently filed a formal Execution Application on 23.08.2024. Further communications were issued, including a letter dated 16.01.2025 seeking police protection for execution, and a notice dated 28.05.2025 directing the petitioner to remove the obstruction. The petitioner duly filed a reply to the said Execution Application on 02.06.2025.

I have heard Shri Deoul Pathak, learned counsel for the petitioner, Mr. A.S. Fulzele, learned Additional Government Pleader for respondent Nos.1 and 2 and Mr. D.S. Khushalani, learned counsel for the respondent Nos.3,4 and 6.

Learned counsel for the petitioner submits that the authorities below completely failed to appreciate that the petitioner is the lawful owner of the property by virtue of a registered sale deed dated 13.03.2019. It is contended that the alleged Consent Letter dated 22.07.2019 holds no legal sanctity, as the erstwhile owner had already parted with her title and interest months prior, and thus could not create an encumbrance over the property.

He further submits that the impugned orders are based on conjectures and completely ignore the vital evidence on record, particularly the factual site report submitted by the Talathi and the pre-2010 factual situation, which demonstrated that the respondents had alternate access and no right of way through the petitioner's land.

He lastly submits that the proceedings before the authorities below were conducted in absolute disregard of the mandatory procedures prescribed under the Mamlatdar's Courts Act, 1906. Relying on the judgment of the Gujarat High Court, delivered on 20^th April, 2022, in Hemrajbhai S/O Bhagabhai Harijan vs. The Deputy Collector, Tharad, it is contended that the failure of the Mamlatdar to strictly comply with Sections 8 to 11 of the Act is fatal to the proceedings, rendering the impugned orders legally unsustainable.

Per contra, learned counsel appearing for respondent Nos. 3, 4 and 6 submits that the petitioner has explicitly admitted in his reply before the Tahsildar that he obstructed the established East-West customary way on 12.06.2019, soon after purchasing the property. He contends that the respondents have been using this access route for over 50 years with the permission of the previous owner.

He further submits that the spot inspections conducted by the Tahsildar and the Talathi factually confirmed the existence of this old customary way and its obstruction by the petitioner using thorny fencing. The petitioner entirely failed to prove the existence of any alternate substitute way, as the alternate route suggested via "Bagdi Nala" was conceded by the petitioner himself in his evidence to be a restricted area.

He lastly submits that the respondents successfully examined five witnesses to corroborate their long-standing usage of the way, whereas the petitioner failed to examine any independent witnesses. He contends that the concurrent findings of fact recorded by the authorities below are well-reasoned and do not warrant any interference by this Court.

I have considered the contentions canvassed by the learned counsels for the respective parties. The learned counsel for the petitioner raises a preliminary objection to the application filed by the respondents under Section 5 of the Mamlatdar's Courts, Act, 1906. He points me out Sections 10, 11 and 12 of the said Act. Section 10 of the said Act provides that the plaint if any filed under Section 5 is to be subscribed and verified by the Mamlatdar in his presence in the manner as stated in the said Section. Furthermore, Section 11 contemplates that the Mamlatdar shall endorse the plaint to the effect that it was duly subscribed and verified. Furthermore, Section 11, sub-section (2) provides the procedure where the plaintiff cannot right and contemplates that the verification shall be made by affixing his mark to his name in token of the authenticity of the verification. Taking support of these provisions it is the submission of the learned counsel for the petitioner that a bare perusal of the application (Plaint) would show that no such procedure has been followed and, therefore, the plaint ought to have been rejected under Section 12.

I am hardly impressed by this submission since all the Sections mentioned supra are a matter of procedure and, therefore, cannot be a substitute to reject a claim which is otherwise meritorious. Furthermore, no such objection was ever taken by the petitioner before the Authorities below and the same cannot be taken for the first time before this Court. A deeper perusal of sub-clause (d) of Section 12 would reveal that the said ground of rejection prescribes that the plaintiff if declines to subscribe or verify the plaint as required in Sections 10 and 11 of the Act. The same would entail in rejection of plaint. It, therefore, presupposes or rather casts an obligation on the Mamlatdar to call upon the plaintiff to subscribe or verify the plaint. Only when the said plaintiff declines to do the same, then it would result in rejection of plaint or otherwise. A meaningful reading of the said provision in the context of the Mamlatdar's Courts Act, 1906 (where disputes pertaining to the boundaries between the agricultural lands are to be adjudicated by the Mamlatdar under the mechanism of the said Act) is to be taken into consideration, which draws me to conclusion that the objection raised is meaningless, I am, therefore, of the considered view that the preliminary objection raised by the counsel for the petitioner is liable to be rejected.

As far as merits of the matter are concerned, it is the submission of the learned counsel for the petitioner that the Tahsildar/Mamlatdar has not taken into consideration the material on record and has allowed the application of the respondents. However, as can be seen from the order of the Tahsildar the contention of the petitioner is not only meritless but contrary to record. The order of the Tahsildar clearly reveals that it has correctly appreciated the spot inspection report, the depositions of the parties and has reached to a cogent conclusion. The Tahsildar has taken into consideration the fact that in the spot inspection report the Talathi has stated that the petitioner herein has closed the road by erecting barbed wire. The position as mentioned in the spot inspection report is fortified by the cross-examination between the parties. The petitioner herein has has clearly admitted that the area of ‘Bagadi Nala’ is a restricted area and, therefore, there is no alternate way. Even though the counsel for the petitioner has tried to lay emphasis on certain admissions of the respondents, they can hardly be of any relevance since almost the entire cross-examination of the respondents is in suggestion form.

Furthermore, an independent witness namely Shrikrushna Tapre has unequivocally stated that there is a way as demanded by the respondents herein. Even though a suggestion was given to him in cross-examination, nothing concrete has been elucidated in the same.

As far as the order of the Revisional Authority is considered, the same also takes into consideration, that the original authority i.e. the Tahsildar has taken into account the evidence oral as also documentary submitted by the parties in support of their respective claims. It has also recorded a finding that the Mamlatdar has correctly appreciated the spot inspection reports.

The learned counsel for the petitioner has placed before me a Circular issued by the State Government dated 20^th April 2026, in which the State Government has stated that no new or alternate road should be given to the person who is claiming obstruction under the Mamlatdar's Courts Act, 1906. The said Circular also states that only because the alternate road is convenient for the applicant before the Mamlatdar that cannot be a reason to grant him the same. When confronted, the learned counsel for the respondents has rightly pointed me out that the respondent is not claiming any new way and is only claiming removal of obstruction from the way which is already existing. I am in respectful agreement with the contention advanced by the learned counsel for the respondents.

The learned counsel for the petitioner has relied on judgment of the High Court of Gujarat at Ahmedabad, in the case of Hemrajbhai s/o. Bhagabhai Harijan Vs. The Deputy Collector, Tharad, in R/Special Civil Application No.16270 of 2020, delivered on 20.04.2022 in support of his case. But the said judgment is only with regard to the preliminary objections which I have referred to and rejected.

Taking overall view of the matter, I am of a considered opinion that there are concurrent findings of fact which the petitioner has failed to demonstrate as perverse. The said facts being based on the material and after appreciation of evidence of the parties on record cannot be said to be perverse warranting interference in writ jurisdiction.

The petition is therefore meritless and is liable to be rejected. The petition rejected. Rule discharged.

After the promouncement of the judgment Mr. Deoul Pathak learned counsel for the petitioner prays for continuance of interim arrangement. However, he concedes to the fact that there was no such interim arrangement operating during the pendency of the petition. The prayer is, therefore, rejected.