Sri Anjina Reddy Vs Sri K Mohan Raju

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 05.11.2019 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AT PAVAGADA IN MA.NO.4/2019 (AT ANNEXURE-A) AS ILLEGAL AND RESTORE THE ORDER DATED 10.01.2019 PASSED IN I.A.NO.1.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2026:KHC:3697 W.P. No.4342/2020

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HC-KAR

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ORAL ORDER

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This petition is filed seeking the following relief:

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"a) Issue a writ in the nature of writ of Certiorari quashing the Impugned order dated 05.11.2019 passed by the court of the Senior Civil Judge and JMFC at Pavagada in M.A.No.4/2019 (at ANNEXUREA) as illegal and restore the order dated 10.01.2019 passed in I.A.No.1."

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Sri.Anandeeswara D.R., learned counsel for the

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petitioner submits that the petitioner-plaintiff has filed a suit in O.S.No.106/2017 for declaration that the petitionerplaintiff's right of way over the suit schedule cart track as well as shown in the plaint rough sketch and further relief of permanent injunction restraining the respondentsdefendants, their agents, etc., from obstructing to the petitioner to go and enjoy the suit schedule cart road situated in Sy.Nos.21 and 22 of Ryapte village map or by closing the same in any manner. In the said suit, an application in I.A.No.1 filed by the petitioner under Order XXXIX Rules 1 and 2 of CPC seeking for temporary injunction. It is submitted that the trial Court, after considering the prima-facie case, by detailed reasons,

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HC-KAR

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allowed the said application. However, the appellate Court reversed the said order. It is further submitted that the petitioner-plaintiff has placed sufficient material before the trial Court and on appreciating the same, the temporary injunction was granted, but the same was reversed by the appellate Court based on the report of the Tahasildar and Revenue Inspector. It is also submitted that the petitioner is required to be provided with the protection of using the said land till the disposal of the suit, otherwise great injustice and prejudice would be caused to the petitioner.

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Per contra, Sri.Kalyan R., learned counsel for the respondents-defendants submits that the appellate Court has considered the report of the Tahasildar and the Revenue Inspector, the said report clearly indicate that there is no existence of the said cart track as jali trees were grown in the said survey number and the respondents-defendants have removed said jali trees and erected solar panels. It is submitted that as on this day, the solar panels are existing in the lands claimed by the

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HC-KAR

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petitioner as cart track, hence, the question of considering any interim relief at this stage would not arise. Hence, he seeks to dismiss the petition.

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I have heard arguments of learned counsel for the petitioner, learned counsel for the respondents and meticulously perused the material available on record and given my anxious considerations to the submissions advanced.

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The records indicate that the petitioner has filed O.S.No.106/2017 before the Court of Civil Judge and JMFC, Pavagada, seeking the relief of declaration that the petitioner-plaintiff has a right of way over the suit schedule cart track as well as shown in the plaint rough sketch and further relief of permanent injunction, restraining the respondents-defendants, their agents, servants, etc., from obstructing to the petitioner to go and enjoy the suit schedule cart road situated in Sy.No.21 and 22 of Ryapte village shown in the map along with plaint.

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NC: 2026:KHC:3697 W.P. No.4342/2020

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HC-KAR

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The petitioner-plaintiff has filed an application under Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction which came to be allowed by the trial Court vide order dated 10.01.2019. The said order was assailed by the respondents in M.A.No.4/2019 and that appellate Court vide order dated 05.11.2019 reversed the order of the trial Court by allowing the appeal, consequently, rejecting the application filed by the petitioner-plaintiff under Order XXXIX Rules 1 and 2 of CPC. It is to be noticed that the parties have raised various contentions. The petitioner is making assertion that the petitioner using the said cart road from ages and placing reliance on the village map, contends that there exists a cart road. Learned counsel for the respondents has heavily placed reliance on the report of the Tahasildar and Revenue Inspector to state that the there is no existence of cart road. Be that as it may, ultimately, the trial Court is required to consider the suit on merits and dispose of the same in accordance with law.

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HC-KAR

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It is to be noticed that this Court vide interim

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order dated 27.02.2020 has directed the parties to maintain status quo and the said order was continued till this date. Taking note of the said order and the pendency of this petition for more than five years, I am of the view that if the said interim order granted by this Court is continued till the disposal of the suit, the ends of justice would be met.

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Without expressing any opinion on the merits of

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the case, the writ petition is disposed of . The interim order granted by this Court on 27.02.2020 is continued till the disposal of the suit.

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No orders as to costs.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR/List No.: 1 Sl No.: 32

Sri Anjina Reddy v. Sri K Mohan Raju

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Sri Anjina Reddy v. Sri K Mohan Raju

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