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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.15274 OF 2020 (GM-CPC)
C/W
WRIT PETITION NO.15265 OF 2020 (GM-CPC)
IN W.P.NO.15274/2020:
BETWEEN
SRI KANTHAPPA GOWDA,
S/O LATE LOKAYYA GOWDA,
AGED ABOUT 48 YEARS,
RESIDING AT DADDU HOUSE,
KOKKADA VILLAGE,
BELTHANGADY TALUK,
D K DISTRICT-574198.
... PETITIONER
(BY SRI. AJITH A SHETTY, FOR
SRI. RAKSHITH KUMAR, ADVOCATE)
AND:
1. SRI LAXMINARAYANA SHABARAYYA,
S/O LATE ANANDA SHABARAYA,
AGED ABOUT 58 YEARS,
2. SRI VISHWA KUMAR,
S/O LAXMI NARAYANA SHABARAYA,
AGED ABOUT 38 YEARS,
BOTH THER RESPONDENTS ARE
RESIDING AT MUNDUR HOUSE,
KOKKADA VILLAGE,
BELTHANGADY TALUK,
D K DISTRICT-574198.
... RESPONDENTS
(BY SRI ABHINAV R, ADVOCATE FOR C/R1 & R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER DTD 22.10.2020 PASSED BY THE
HONBLE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
BELTHANGADY IN MISCELLANEOUS APPEAL NO.4 OF 2019 VIDE
ANNX-A, THEREBY TO CONFIRM THE ORDER DTD 28.01.2019
PASSED BY THE HONBLE PRINCIPAL CIVIL JUDGE AND JMFC,
BELTHANGADY IN IA NO.II OF O.S.NO.409 OF 2018.
IN W.P.NO.15265 OF 2020:
BETWEEN
SRI KANTHAPPA GOWDA,
S/O LATE LOKAYYA GOWDA,
AGED ABOUT 48 YEARS,
RESIDING AT DADDU HOUSE,
KOKKADA VILLAGE,
BELTHANGADY TALUK,
D K DISTRICT-574198.
... PETITIONER
(BY SRI. AJITH A SHETTY, ADVOCATE FOR
SRI. RAKSHITH KUMAR, ADVOCATE)
AND:
SRI LAXMINARAYANA SHABARAYYA,
S/O LATE ANANDA SHABARAYA,
AGED ABOUT 58 YEARS,
RESIDING AT MUNDUR HOUSE,
KOKKADA VILLAGE,
BELTHANGADY TALUK,
D K DISTRICT-574198.
... RESPONDENT
(BY SRI ABHINAV R,ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER DTD 22.10.2020 PASSED BY THE
HONBLE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
BELTHANGADY IN MISCELLANEOUS APPEAL NO.5 OF 2019 VIDE
ANNX-A, THEREBY TO CONFIRM THE ORDER DTD 28.01.2019
PASSED BY THE HONBLE PRINCIPAL CIVIL JUDGE AND JMFC,
BELTHANGADY IN IA NO.III OF O.S.NO.5 OF 2019.
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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY THROUGH PHYSICAL HEARING, THE COURT
MADE THE FOLLOWING:
ORDER
Between the land of the petitioner and of the respondents, there lies a strip of area which the petitioner asserts to be a pathway and the respondents dispute the same; both the sides agree that they are not the owners of that strip of land although petitioner claims that he has right to use the alleged pathway and the respondents claim that they have kumki rights thereon since the said strip adjoins their varga land; thus both the sides being at logger-heads have instituted two suits viz petitioner's in O.S.No.409/2018 and respondents in O.S.No.5/2019, both seeking a decree for injunctive relief against each other.
2. Petitioner's application for injunctive relief in respect of the subject strip of land having been allowed by the learned trial Judge and the same having been reversed by the learned Appellate Judge, these writ petitions have been filed for laying a challenge thereto.
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3. After service of notice, respondents have entered caveat through their learned counsel who vehemently opposes the writ petitions making submission in justification of the impugned order(s).
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant a limited indulgence in the matter as under and for the following reasons:
(a) Admittedly both the petitioner and the respondents are not the owners of the strip of land in question which happens to be the bone of contention between them; any land that does not belong to a citizen ordinarily belongs to Caesar, is the law of the land, which both the sides do not much dispute.
(b) Petitioner contends that there lies a pathway that adjoins his land whereas, respondents per contra contend that there is no such way at all; respondents further contend that the so called 'pathway' is a strip of land over which they have kumki rights since it is a part of their varga land concerned; this contention need not detain the Court for long since apparently there lies a "kind of pathway" as prima face 5 shown by the photographs produced by the petitioner as annexures to the writ petitions, a little dispute as to their authenticity, notwithstanding; of course, this Court cannot form a concrete opinion as to the said strip of land being a pathway, as rightly contended by the learned counsel for the respondents is also true;
c) Justice of the case, regardless of the observations made by the two Judges of the Court below warrants that no party to the suits should meddle with the strip of land in question much at least pendente lite; however it is open to the petitioner and the respondents to tread on the said strip without causing any damage to the crop that are grown by them in their respective varga lands.
It is made clear that either the impugned orders or this judgment shall not be construed to authorize any of the parties to form any new road or extend the one which is arguably existing as a pathway; this arrangement shall work as a ceasefire for the time being.
It hardly needs to be stated that, learned Judge of the Court below shall not be influenced even in the least by the 6 observations in the orders of the Court below or of this Court in treating the suits, on their intrinsic merits.
Accordingly with the above observations, both the petitions are disposed off, costs having been made easy.
Sd/-
JUDGE Snb/