Channabasaiah vs Dastagir Sab

B. Manohar, J.—The petitioner is plaintiff in OS No. 126/2009 on the file of the Senior Civil Judge and JMFC, Shikaripur. Being aggrieved by the order dated 27.7.2012 made in MA No. 5/2010 by the Senior Civil Judge and JMFC, Shikaripur, he has filed this writ petition.

The petitioner/plaintiff filed a suit in OS No. 126/2009 seeking for declaration declaring that he had acquired easementary right of pathway by using and enjoying the right of way in the land bearing Sy. No. 140 situated at Arishinagere village, Shikaripura Taluk, Shimoga District. In the plaint, it was contended that he is the absolute owner of the land bearing Sy. No. 17 measuring 1 acre 34 guntas. Adjacent to the said land, land bearing Sy. No. 140 totally measuring 27 acres 7 guntas belonged to the State Government. The State Government granted the said land to various persons. The land measuring 1 acre 20 guntas was granted to the 1st defendant, which is adjacent to the land of petitioner. The petitioner has been using the said land for his right of pathway to approach his land. Except the said pathway, he has no other way to approach his land. He also filed I.A.I under Order 39 Rule 1 and 2 of CPC seeking for temporary injunction restraining the defendants from obstructing the use of existing pathway in Sy. No. 140. The Trial Court after considering the objections filed by the defendants by its order dated 30th January, 2010 allowed the application and granted an interim order restraining the defendants from obstructing the plaintiff from using the suit way till the disposal of the suit. Being aggrieved by the said order, the defendants filed MA No. 5/2010 on the file of the Senior Civil Judge and JMFC, Shikaripura contending that the order passed by the Trial Court granting temporary injunction and right of enjoyment of pathway in Sy. No. 140 is contrary to law. The lower Appellate Court after considering the matter in detail and considering the village map held that there is no mentioning of pathway in land bearing Sy. No. 140 belonging to the defendants. The plaintiffs have not produced any document to show neither the existing pathway nor cart track to access them and accordingly set aside the order passed by the Trial Court by allowing the appeal filed by the defendant by its order dated 27th July, 2012. Being aggrieved by the same, the plaintiff has preferred this writ petition.

Sri Rajendra, learned Advocate appearing for the petitioner contended that the order passed by the lower Appellate Court is contrary to law. The petitioner is absolute owner of land bearing Sy. No. 17 measuring 1 acre 34 guntas. The petitioner has been using the right of way in Sy. No. 140 since 30 years. Prior to the purchase of the said property, the erstwhile owner, Shekharappa was using the existing pathway. There is no other approach road to plaintiffs/petitioner''s land. The Trial Court after considering matter in detail passed the interim order granting temporary injunction. However, the lower Appellate Court without examining the matter set aside the order of temporary injunction, which is contrary to law. The Appellant Court has not taken into consideration the balance of convenience and hardship caused to the parties and sought for allowing the writ petition by setting aside the order of lower Appellate Court.

I have carefully considered the arguments addressed by the parties and perused the order impugned and other relevant records.

The records clearly disclose that the plaintiff is absoluter owner of land bearing Sy. No. 17 measuring 1 acre 34 guntas situated at Arisinagere village, Shikaripur Taluk. The defendants are the owners of land bearing Sy. No. 140 measuring 1 acre 20 guntas. The case set up by the petitioner is that he is using the existing pathway in Sy. No. 140 as access to his property bearing Sy. No. 17. If the said pathway is blocked, he has no other pathway to approach his land. Since the defendants interfered with the using of pathway by the plaintiff, the plaintiff filed the suit and also I.A. No. I under Order 39 Rules 1 and 2 of CPC seeking for temporary injunction pending disposal of the suit. The Trial Court though found that there is a pathway next to Sy. No. 140, the plaintiff has been using the pathway through Sy. No. 140. If the said pathway is blocked, the plaintiff will put to irreparable injury and hardship. There is no pathway to reach his property. The defendants contended that land bearing Sy. No. 140 is measuring in all 27 acres 7 guntas. The Government has granted the land bearing Sy. No. 140 to various persons. The land measuring 1 acre 20 guntas has been granted to the 1st defendant. The existing pathway has not been mentioned in the village map. Usually, in the village, the people are using the bunds of other lands to approach their properties. In the village map produced by the plaintiff, there is no existence of pathway or cart track in Sy. No. 140, which was granted to the 1st defendant. In the absence of any pathway or cart track in Sy. No. 140, the question of granting the injunction obstructing the plaintiff from using the suit way does not arise. The village map is not showing the existing pathway in Sy. No. 140 belonging to the 1st defendant. In the absence of any document, the plaintiff is not entitled for any interim order. The lower Appellate Court after considering the matter in detail and taking into consideration the village map and other relevant records set aside the order passed by the Trial Court. In this writ petition also, there is no interim order by this Court. The petitioner has not made out a case to interfere with the order impugned. Therefore, I find that there is no infirmity or irregularity in the order impugned. In the circumstances, the only order that can be passed in this writ petition is to direct the Trial Court to dispose of the matter as expeditiously as possible. The petitioner is not entitled for injunction in this writ petition. It is open to the petitioner to produce necessary document and lead evidence as to the existence of pathway in Sy. No. 140 measuring 1 acre 20 guntas belonging to the defendants. Hence, I pass the following:

ORDER

The writ petition stands disposed of reserving liberty to the petitioner to move the Trial Court for early disposal of the matter. The Trial Court is directed to dispose of the matter without being influenced by any of the observations made by the lower Appellate Court or this court while disposing of the suit.