Farmer Claims Access Through Neighbour’s Agricultural Land; Bombay High Court Says Mamlatdar Cannot Create New Road, Existing Customary Way Must First Be Proved
Tahsildar Orders Farmer to Remove Obstruction From Agricultural Road; Bombay High Court Sets Aside Order as Road’s Identity Was Never Properly Established
Facts
The dispute arose from agricultural land bearing Gat No. 415 at Mouje Varkheda, Taluka Dindori, District Nashik. Respondent No. 3, Pandurang Karbhari Uphade, claimed a right to use an East-West Vahivat road passing from Gat No. 415 towards a North-South village road for accessing his agricultural field. He alleged that the petitioners had obstructed that road and sought removal of the obstruction and a permanent injunction. SHRI. BALASAHEB
The petitioners—Balasaheb Karbhari Uphade and others—denied both the existence of the claimed Vahivat right and the alleged obstruction. The parties and case particulars are recorded in Balasaheb Karbhari Uphade & Ors. v. Tahasildar, Dindori & Ors., Writ Petition No. 12314 of 2018. SHRI. BALASAHEB
The Tahsildar conducted a spot inspection and ultimately allowed Vahivat Case No. 35 of 2015 on 18 March 2017, directing removal of the alleged obstruction and restraining the petitioners from obstructing the road.
The petitioners challenged that order before the Sub-Divisional Officer, Kalwan. The SDO dismissed Vahivat Revision No. 33 of 2017 on 12 September 2017, leading to the present writ petition. SHRI. BALASAHEB
Issues
The principal question was whether the Tahsildar, exercising jurisdiction under Section 5 of the Mamlatdars’ Courts Act, 1906, could grant a right of way merely because the claimant required access to his agricultural field.
The connected issues were whether the particular road claimed by Respondent No. 3 was proved to have already existed; whether the alleged obstruction to that particular road was established; whether the road claimed in the civil proceedings was the same road claimed before the Mamlatdar; and whether the proceedings were instituted within the statutory six-month limitation period.
Petitioners’ Arguments
The petitioners contended that they were in possession of the subject property, as recorded in Crop Inspection Case No. 70/15, which had also been dealt with by the same Tahsildar.
They argued that Respondent No. 3 had claimed a different road in the civil suit from the road subsequently claimed in the Vahivat proceedings.
They further attacked the spot panchnama as vague because it failed to properly identify the location, route and portion of Gat No. 415 through which the alleged road passed.
According to them, the authorities had therefore ordered removal of an obstruction without first establishing the fundamental fact that the particular road claimed by Respondent No. 3 actually existed. SHRI. BALASAHEB
Respondent’s Arguments
Respondent No. 3 contended that Gat No. 415 was ancestral property which had subsequently been partitioned.
He maintained that he had been using the disputed road for years to access his agricultural field and that the petitioners subsequently blocked it.
He relied particularly upon the spot panchnama and argued that he had no other road available for reaching his agricultural land. SHRI. BALASAHEB
Analysis of the Law
Section 5 Protects an Existing Road — It Does Not Create One
Justice Amit Borkar drew a clear distinction between protecting an existing right of way and creating a new route.
The jurisdiction under Section 5 is summary jurisdiction, intended to provide immediate relief where a person is unlawfully disturbed or obstructed in the use of an existing road or customary way. SHRI. BALASAHEB
Therefore, the Mamlatdar must first determine:
- What particular road is claimed;
- Whether that road actually existed and was being used;
- Whether the defendant obstructed that road; and
- When the obstruction first commenced, because limitation runs from that date. SHRI. BALASAHEB
The Court made the crucial distinction that need for access is not proof of an existing road.
A person may genuinely require access to agricultural land, but that does not empower the Mamlatdar to select a convenient route through another person’s property and grant passage over it. SHRI. BALASAHEB
Section 5 Mamlatdars’ Courts Act vs Section 143 Maharashtra Land Revenue Code
The Court relied on Vimal Bhausaheb Nabde v. Sub-Divisional Officer to distinguish two statutory regimes.
Under Section 5 of the Mamlatdars’ Courts Act, the Mamlatdar can order removal of an obstruction from an existing road, provided the proceedings satisfy the statutory limitation requirement.
By contrast, Section 143 of the Maharashtra Land Revenue Code enables the Tahsildar to grant a new right of way over boundaries of agricultural lands.
Accordingly, Section 5 cannot be used to grant passage over a road that did not previously exist. SHRI. BALASAHEB
What Evidence Can Prove an Existing Road?
The judgment is particularly useful because it provides a detailed evidentiary framework for right-of-way proceedings.
The Court held that there is no single mandatory document that must invariably establish the road. The evidence has to be assessed cumulatively.
Relevant material may include:
- village, cadastral and Gat maps;
- TILR/DSLRO measurements;
- 7/12 extracts and other revenue records;
- earlier Section 143 MLRC orders;
- spot panchnamas;
- sketches prepared during inspection;
- photographs showing tracks, wheel marks or old passages;
- oral evidence regarding long-standing use;
- Gram Panchayat, PWD or Zilla Parishad records;
- previous civil court proceedings and Commissioner reports; and
- evidence establishing when the obstruction first commenced. SHRI. BALASAHEB SHRI. BALASAHEB
The Court emphasised that where the road itself is disputed, there must be sufficient evidence to identify the particular route.
Panchnama Was Insufficiently Precise
The Tahsildar had found marks of a road at the site and recorded that the petitioners had allegedly ploughed the road and cultivated watermelon over it.
But the High Court found a fundamental deficiency.
The material did not clearly establish how those physical marks corresponded with the specific East-West road pleaded by Respondent No. 3.
The starting point, ending point, width and precise position of the alleged road with reference to the Gat boundaries had not been adequately shown. SHRI. BALASAHEB
Thus, finding something resembling a road at the site was not enough. The authority had to establish that it was the very road claimed in the proceedings.
Different Road Claimed in Civil Proceedings
The Court also considered the petitioners’ argument that Respondent No. 3 had claimed a different road in Regular Civil Suit No. 102 of 2016.
It held that this contention was relevant because evidence concerning one road cannot establish the existence of another.
The Tahsildar would therefore have to compare the plaints, maps, boundaries, Gat numbers and reliefs in the two proceedings.
The mere fact that the civil suit had been dismissed on a technical ground did not establish either the existence or non-existence of the disputed road. SHRI. BALASAHEB
Crop Inspection Proceedings
The Court rejected the proposition that the petitioners’ possession over Gat No. 415 automatically defeated Respondent No. 3’s claim.
Possession of agricultural land and existence of a right of way over that land are distinct questions.
A person may be in possession of the land while another possesses an established right to use a road passing through or alongside it.
Nevertheless, the Crop Inspection Case was relevant evidence and had to be properly examined in the fresh inquiry. SHRI. BALASAHEB
Precedent Analysis
Vimal Bhausaheb Nabde v. Sub-Divisional Officer — Section 5 concerns removal of obstruction from an existing road, whereas Section 143 MLRC concerns grant of a new right of way. SHRI. BALASAHEB
Shrikrishna Sheshrao Dane v. Vasantrao Ramrao Tayde — the Mamlatdar must determine whether there actually exists a road or customary way in use before granting relief. SHRI. BALASAHEB
Gopalrao Baliramji Deshmukh v. Sopan Gulabrao Deshmukh — a panchnama, sketch map, 7/12 extract and oral evidence may collectively establish an existing road; the evidence should not ordinarily be viewed in isolation. SHRI. BALASAHEB
Dattatray Kondaji Dongre v. Dattatray Dagadu Lohate — a properly conducted panchnama supported by independent panchas can constitute relevant evidence regarding a motorable road. SHRI. BALASAHEB
Chhagan Sarjerao Garad v. State of Maharashtra — measurement maps prepared by competent Land Records authorities can provide important evidence where the exact route is disputed. SHRI. BALASAHEB
Anandrao Ishwar Dhyagude v. Bhaganna Laxman Pandhre — an earlier statutory declaration under Section 143 concerning the same road can constitute significant evidence of its existence. SHRI. BALASAHEB
Court’s Reasoning
The High Court found that the authorities had not adequately answered the threshold factual question:
What exactly was the road claimed by Respondent No. 3, and did that particular road exist before the alleged obstruction?
Without first identifying the route, it was unsafe to conclude that the petitioners had obstructed it. SHRI. BALASAHEB
The Court therefore did not decide whether Respondent No. 3 ultimately possessed the claimed right of way. Instead, it found the existing inquiry inadequate and ordered a fresh factual determination.
The Tahsildar was directed to conduct a fresh spot inspection, consider proper measurements and maps, examine revenue and civil-court records, ascertain prior use, identify the precise obstruction and independently determine the date on which the obstruction first commenced.
Importantly, absence of another road may be relevant evidence, but it cannot itself justify creating a new road under Section 5.
Conclusion
The Bombay High Court allowed the writ petition and set aside both the Tahsildar’s order dated 18 March 2017 and the SDO’s revisional order dated 12 September 2017.
Vahivat Case No. 35 of 2015 was restored to the Tahsildar, Dindori for a fresh inquiry.
The Tahsildar must specifically determine the existence and identity of the road, its prior use, the alleged obstruction and the date on which the obstruction first commenced. The fresh inquiry was directed to be completed, as far as possible, within four months.
The Court deliberately left the merits open: it neither declared that the road exists nor that it does not exist.
The central legal proposition is clear: Section 5 of the Mamlatdars’ Courts Act is a remedy for restoring an existing road or customary way after obstruction; it cannot be used to create a new access route merely because a landholder needs one.
Case Details
Case: Balasaheb Karbhari Uphade & Ors. v. Tahasildar, Dindori & Ors.
Court: Bombay High Court, Civil Appellate Jurisdiction
Case No.: Writ Petition No. 12314 of 2018
Neutral Citation: 2026:BHC-AS:39451
Judge: Justice Amit Borkar
Reserved: 28 September 2026
Pronounced: 29 September 2026 SHRI. BALASAHEB
Result: Writ petition allowed; Tahsildar and SDO orders quashed; Vahivat Case No. 35 of 2015 remanded to Tahsildar, Dindori for fresh inquiry
