Sri Kanthappa Gowda vs Sri Laxminarayana Shabarayya
2021 Latest Caselaw 412 Kant

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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.

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

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

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/