Karnataka High Court
Sri M.K. Nachappa vs Sri. M.M.Aiyanna on 10 February, 2012
Author: B.S.Patil
Bench: B.S.Patil
WP 17478-80/2010 4 Assistant Commissioner and the Assistant Commissioner having considered the matter and appreciated the contentions of the parties, confirmed the order pasiseddbyll be Tahsildar. Aggrieved by the same, the» petitioner it a second appeal before the Deputy provisions contained under Section"-.50 of h "the VKarnatakaLand " V Revenue Act, 1964 (for short....lll:'Atvhe'2._pActll."'--The_:§ Deputy Commissioner has dismissed the appeal confirming the findings recorded by both the'authori'ties:below1,_ T he 5. Contendi-"neg authorities have seriously erred in rec'o1':iing aT?fin.d'ir1g'- that" there was in existence a Kadanga through No.1 has the right to have access, although tiiere-was intfact no Kadanga in existence and ,.~'th_e place vvhere the'«respondent intends to pass through to
llr-.é,pach"nis 'isypart of the land belonging to the petitioner, the pres'ent'--.vvrit is filed.
~ No as per Section 56 of the Act, the Karnataka it Tribunal has got power of revision. The revisional of the Tribunal extends over all the authorities subordinate to it to correct the illegalities committed. This writ petition is filed in the year 2010. The matter is pending before V WP 17478~80/20 10 this Court for the last Lyears. Merely because the petitioner has got an alternative remedy of approaching the . Appellate Tribunal invoking the revisional povveis:_:th'is'wri.tvl petition cannot be dismissed on that'»._grog'un.d "a lapse ' three years. Parties have litigated the~._niatter':lbe:fo<re tliree authorities and this Court has elirtensivelyll matter providing opportunity to lh.e_refcre, in View this writ petition cannot be rioV\§'»'_'Iffl;4.l::ntainable, only because an alteinativeg provided under Section 56 oil. Karnataka Appellate Tiibunal,"
7. So farxasw the raised for consideration is concerr§ed,_thelnzainllcontention of the petitioner is that, in 'institutleld by the very respondent against the in O.S.No.139/ 1969 filed by the father of 6 it the lisflrespondcilt, later on pursued by the 15' respondent and brothers, similar dispute regarding the same road fell for g{on:si6d'e.ration and the suit instituted in the year 1969 came to .'._l/beldisrnissed and the judgment and decree passed by the Civil was confirmed in R.A.29/ 1977. As regards the second 0' «suit in OS. 106/2007, it is urged by the petitioner that even in i"
WP 17478-80/2010 6 the said suit the very same dispute was raised with regard to the road in question and an application filed XXXIX Rule 1 & 2 CPC by the 15' respondent it temporary injunction came to be dismissed -'_byV4olrderlldaftedv.. 1.4.2007 and it is only thereafter thaltgthelllélt chosen to initiate the present proceedings"before: tVhe':._;'I"a}1sildar " V and therefore. the Tahsildar and gtb.e:'App'ellatelAuthonty ought not to have entertained it _regard to the judgment already renderedllland the order passed dismissing injunction in o.s.106/2oo-7,i-- it t
8. The contention Counsel for the petitioner is that, as the matter finality on the civil side and at yany been" presently pending in O.S.lO6/2007 the llrevenuetauthoiiity could not have embarked upon an enquiry V intoiheivery and passed an order adverse the interest of the petitioner. V ' * .Irln$the light of this contention it is necessary to now find (lllt_fil£7h€th€r the subject matter of the two suits is the same as the one for which the 1" respondent had approached the Tahsildar. As can be seen from the claim made before the *5"
WP 17478-80/2010 Tahsildar by the 15' respondent, he has made a request Vbefore the Tahsildar to secure to him access to his land No.l3l/ 3P2 measuring 2.85 Acres through a Kadanga M in Sy.No.l3l/5 to 131 /2, 128/1, 128/V-2'"to----131-/3l?é{"'l:vB_ased]onv--.& A this request, the Tahsildar has conduc'ted7'.anlieniquiry? got the spot inspection conduct_e4'dV..¢_after' Vc__1uVl_viliV1_oti_f§'ii'nwg":the " t parties with the help of g the $,S.I,Jvi:f-V€yCJf_' anldk jthelifzevenue Inspector. After securingvthell considering the respective COn't€1"itiO'!tiSv..Of the has come to the conclusion 3132 belonging to the 1st ancestors had difficulty for its ac:cess__ '1'3%:é'pQI1'd€I'1t from the available road which he vvafsgllutsing. therefore he had sought for access to his lllandlfthrough the existing Kadanga. After the village map through the help of the ahsildar has found that there was in existence a Kadanga which the 15' respondent can have access to ~ land. it inlet' has further found that the said portion of Kadanga 'b.e_en encroached upon by the petitioner and hence as under Sections 67 and 103 of the Act, the area encroached upon by the petitioner was required to be cleared for the purpose of providing access to the public including the 4 WP 17478-80/2010 petitioner. He has exercised such a power in the interest,--C;fthe public. As already stated above, this order has the Assistant Commissioner and the Deputy Comrr1ilssic»ner:ll
10. So far as the subject matter of lfiispiitej. is concerned, as is evident frona'1_'_the judgmentegolfe Clourt produced at Annexure-G, the the*said*.V':suit§ filed by the father of the 1st resporident of the easementary right of the situated in Kalathodu Bigedu gréffidy. the plaintiff had perfected suchila the alternative that he had overjthelslaidfvzroad as an easement of necessity the share of the properties and also for per1nar1er1t.Vir1.jur:.,c:ti'er1 to restrain the defendant from " the plaintiifs easementary right of way. 11,- plaintiff had filed the said suit against it his brotherv'an;d?'his son. In paragraph 2 of the judgment, it is thatthe dispute in the suit related to a road having 16 running over survey Nos.131/1, 128/1, 128/2, 131/1 upto Sy.No.132 and connecting the plaintiffs llV..,lproperty bearing Sy.Nos.132/1, 167, 168, 172/1, 172/2, 173/1, 173/3 and the house situated in Sy.No.173/2. The »% wp 17478-80"/2010 disputed road in the said suit as urged by the M running over defendant's land in S§i:.NOsi128[ 131/ 1 and the same was used by pass through and take animals,_ffnanur.e, V coffee-,_ p.a(i'dy":and " i other produce from the plaintiffgs_...1aA'nd "ton Kornrnelfiole Hathur PWD road and vice Versa house openly and peacefully as easement It was the further case of that the plaintiff and the properties over which the said road and the properties were divided between thernf in therefore the plaintiff was entitledgto have of' way as an easement of necessity for enj'oyrn"ie'ntlVl'of_ his of the properties. .1112. l"ltViSplh1.1S,Cl€EtI' that the road in respect whereof the father passing through Government land described as Kadanga according to the 1st respondent was encroached upon/_t e of the vigst Vreslpgioridlelnt instituted O.S.No.l89/1969 was not the one for"wh'ich"'the present proceedings are initiated in respect of b I'-
gipetitioner thereby denying access to the ls' respondent to his "land comprised in Sy.No.l3l/ 3P2. The road in respect whereof thgfiisementary right was claimed by the plaintiff--l5' wp 17478-80/2010 10 respondent herein in O.S.139/ 1969 was the road that passed through private land belonging to the petitioner according to the plaitniff--1S' respondent was M continuously even when they were part-1 of the joint ..¢;':«u's-.g claim is totally different from the respondent seeks right of way in thefioveriiment Vlanlcifwhich is 2' allegedly encroached by the .petitioner:."i--.
13. Similarly, in O.S. 106/ from the copy of the plaint prodhfffiid at:=__An11e3<u1<e::lfi;'*utheffsubject matter of dispute was the road Bf schedule as under:
"A Motorable road of approximately 10 feet Vflofffrom Kummehole Hathur road at a oi"..fAappi=o2{imate1y 5.5 Kms., in between Sy-.No. 1228,/.1' to? North? '' and Sy.No. 128/2 to South and throughv~S~y«.l\los.131/2, 134, 135 and 136 and a ' ixpgathff North to South measuring approximately I if in length and 4 ft. in which branching of 2' from 'l\/landala Panchayath Motorable road in the Sy.No. 131/2 and reaching Sy.No.131/2132."
plaint averments further disclose in paragraph 16 {f%1r1'V3._t'§p1aintiff claims to have acquired and perfected his right over the B Schedule road and path to reach his property as an easement by prescription. No claim is made in the said suit in Jr' WP 17478-80/2010 12 r.» 18' respondent, '(his Court in exercise of the writ jurisziiction cannot upset such findings.
16. Although the petitioner has asserted that"thfle'rell'v.ias.V not such Kadanga belonging to the Governmentjind,.that- $17» and parcel of his land, this question cannot" be ag'itated_gby_V§this Court in writ jurisdiction. If at ailitiie petitioner intends to establish the same, he has:to._do fit in tlie_ nianner known to law by approaching the Civil Court'. it it
17. As thereisi'-no .__erfior corlnmitrted or apparent illegality "or{Ci'ei§s:.v_ur.d_erLchalleingei this writ petition being devoid of inerits is' d.isr__nissed_. '"N_o'costs. Sd/-
JUDGE