Nagappa S/O Bheemappa Kadakola Vs Smt Indramma W/O Prakash Katagi

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ORDER DATED. 02-12-2024 PASSED IN M.A. 11/2023 BY II ADDL. SENIOR CIVIL JUDGE AND JMFC RANEBENNUR VIDE ANNEXURE-H AND ORDER DATED. 14-08-2023 PASSED IN O.S. NO. 117/2023 BY ADDL. CIVIL JUDGE AND JMFC, RANEBENNUR VIDE ANNEXURE-E, IN IA NO. 1 AND ALLOW I.A NO. 1 VIDE ANNEXURE-C AND ETC.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

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The Petitioners are before this Court seeking for the following reliefs:

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a. Issue a writ of certiorari to quash the order dated. 02-12-2024 passed in M.A. 11/2023 by II Addl. Senior Civil Judge and JMFC Ranebennur vide Annexure-H and order dated. 14-08-2023 passed in O.S. No. 117/2023 by Addl. Civil Judge and JMFC, Ranebennur vide Annexure-E, in I.A. No. 1 & allow I.A No. 1 vide Annexure-C.

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b. call for records.

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c. Issue any other writ or order or direction the Honorable Court deems fit in the facts and

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circumstance case and including cost in the interest of justice and equity .

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O.S. No.117/2023 had been filed by the petitioners

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seeking for easementary right by way of prescription and necessity over the land of the respondents, who are the defendants therein. In the said suit, an application under Order 39 Rules 1 and 2 of CPC had been filed seeking for injunction restraining the defendants from interfering with the petitioners' use of the property of the defendants to access the Agalgad Road, situated in the northern portion of the property of the defendants. The said application came to be rejected. An appeal in M.A. No.11/2023 having been filed, the said M.A. also came to be rejected. It is challenging both the orders that the petitioners had approached this court.

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This court had appointed the ADLR as a commissioner to inspect and survey the properties of the petitioners and the respondents, that is the plaintiffs and

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defendants, as also the surrounding areas to ascertain the existence of the road.

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Learned AGA has filed a report of the ADLR. Learned AGA submitted that under the ‘Namma Hola Namma Raste’ scheme, there was a proposal to form a road connecting all the properties to the Agalgad-Irany Road. Sketch has also been produced, indicating that though the proposal was for the formation of a road from point-A to point-D and from point-C to point-G, a road has been formed from point-B to point-D and point-C to point-G. However, the same could not be so done in respect of point-A to point-B on account of the obstruction of the landowners, the said landowners being the defendants and respondents herein.

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The fact that the State has thought it fit to lay a road under the ‘Namma Hola Namma Raste’ scheme would categorically indicate that there are no other roads which are available to access the properties of the petitioner plaintiffs. Admittedly, the works could not

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be completed on account of the obstruction offered by

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the defendants.

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The submission of Sri.V.S.Koujalagi, learned counsel for the Defendants that the defendants have made available a road to the land in Survey No. 251 from point-H to point-I and as such, it would be for the owner of the land in Survey No.251 to provide access from point-I to point-B in the said sketch is not acceptable and cannot be accepted for the simple reason that the proposal of the State is to form a road from point-A to point-D. The respondents were also called upon to make the submission if they are willing to provide land from point-I to point-B within their lands so as to continue the retention of the land of the respondents as a single compact block. However, the counsel for the Respondents submits that the respondents are not willing to offer any land for the purpose of formation of the road connecting the main road.

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In that view of the matter, it is clear that the State is

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required to form the road from point-A to point-D so as to provide the lands of the petitioner and others access to the main road. That being the case, both the trial court and the first appellate court have completely misapplied themselves without having appointed a commissioner, without ascertaining the true facts, the applications have been dismissed, though there is a reference made to the ‘Raitha Samparka Raste’ scheme and the release of the funds in respect thereto.

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In that view of the matter, I pass the following order.

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ORDER

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i. The petition is allowed.

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ii. The order dated 14.08.2023 in O.S. No.117/2023 passed by the Additional Civil Judge and JMFC, Ranebennur at Annexure-E on IA No.1 and the order dated 2.12.2024 passed in M.A.

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No.11/2023 at Annexure-H are set aside. Consequently, IA No.1 filed in O.S. No.117/2023 is allowed.

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iii. The respondents are restrained from interfering with the petitioners’ use of the land from point-A to point-D as per the survey sketch which has been filed in the present matter.

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iv. Learned AGA is also directed to instruct the concerned to go ahead with formation of the road from point-A to point-D as per the original scheme now that there is an injunction operating against the respondents from interfering with such formation has been vacated.

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Sd/(SURAJ GOVINDARAJ) JUDGE

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LN List No.: 1 Sl No.: 268

Nagappa S/O Bheemappa Kadakola v. Smt Indramma W/O Prakash Katagi

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Nagappa S/O Bheemappa Kadakola v. Smt Indramma W/O Prakash Katagi

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