IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.35178 OF 2018 (KLR-RES) AND WRIT PETITION No.35371 OF 2018 (KLR-RES) BETWEEN:
SRI B.D.MUKUNDA S/O B.D.DEVAPPA, AGED ABOUT 66 YEARS, ATHUR VILLAGE & POST, GONIKOPPAL, KODAGU – 571213. ...PETITIONER (BY SMT.LEELA.P. DEVADIGA, ADVOCATE FOR SRI A.K.SUBBAIAH, ADVOCATE) AND:
1. STATE OF KARNATAKA BY TAHASILDAR VIRAJPET TALUK, VIRAJPET - 571218 KODAGU DISTRICT.
2. VOTERIRA A VIMAL PONNAPPA, S/O V.P. AIYAPPA AGED ABOUT 42 YEARS 3. VOTERIRA A VIRAJ APPACHU S/O V.P.AIYAPPA AGED ABOUT 36 YEARS RESPONDENTS NO.2 & 3 ARE RESIDING AT ATHOOR VILLAGE, PONNAMPET NAD, VIRAJPET TALUK, KODAGU DISTRICT -571213. ...RESPONDENTS (BY SRI VENKATESH DODDERI, AGA FOR R1; SRY T.A.KARUMBAIAH, ADVOCATE FOR R2 & R3) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY R-1 DATED 20.03.2018 VIDE ANNEXURE-E AS INAPPROPRIATE AND VOID.
THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein is impugning Annexure – ‘E’ passed by the first respondent Tahsildar, Virajapete Taluk, Kodagu District in proceedings No.M.A.G:Daari:138:2016-17 wherein it is ordered that the nakashe road, which is seen in the village map as road indicating paalibetta main road to Athoor village through Sy.Nos.21/1 and 22/3 should be identified and cleared of all the encroachments. The said order is challenged in this proceedings. While filing these writ petitions, two of the villagers have also been arrayed as parties to the proceedings in alleging that they are instrumental behind issuance of the order impugned dated 20.03.2018.
2. The grievance of the petitioner is that he is the owner of the land bearing Sy.No.22/3 of Athoor Village, Virjept Taluk, Ponnampet Nad, Kodagu District measuring an extent of 5.30 acres. According to the petitioner, there was obstruction by defendants No.1 and 2 and another person with reference to the enjoyment of the said property resulting in the suit being filed in O.S.No.133 of 2003 on the file of the Civil Judge (Sr.Dn.) Virajpet against respondents No.2 and 3 herein and another one, namely, Sri.Voterira.P.Aiyappa. Admittedly, the said suit is decreed in favour of the petitioner herein who is the plaintiff in the said suit in declaring him as the absolute owner of the suit property, namely, Sy.No.22/3 and the defendants in the said suit are restrained from taking any steps to widen the existing eight feet formed by the plaintiff in the said suit in the land belonging to him. The said judgment and decree in O.S.No.133 of 2003 is confirmed in R.A.No.5 of 2009 on the file of the District Court, Kodagu which was filed by respondents No.2 and 3 along with one Sri.Voterira.P.Aiyappa and the litigation in so far as that aspect is concerned has reached finality in the judgment passed in R.A.No.5 of 2009 on 19.01.2012.
3. Thereafter, it is stated that respondents No.2 and 3 herein have approached the first respondent in securing the order impugned. In these proceedings, after service of notice, respondents have entered appearance and filed statement of objections wherein the relevant document, which is at Annexure – ‘R1’ is the survey report in proceedings No.TVT MAG 138/2016-17 250310 1634 0103 SSGR 2970/2016-17 of Athoor Village where a report submitted by the Survey Superintendent to the Revenue Department would indicate that on receipt of query received to verify whether there is nakashe road in existence at Sy.No.22/3, it is stated by Sri K.C.Shivananda Reddy, Surveyor, Taluk Office, Virajpet that nakashe road is in existence in the middle of Sy.No.22/3, which belongs to one Sri.B.D.Mukunda. It is further stated that though the nakashe road is there in the nakashe sketch of village map, physically it is not present in the land. It is stated that in the said portion, coffee plantation is put up by the petitioner, Sri.B.D.Mukunda and in the said report, it is also stated that there is a road in existence, the width of which is 16, 10, 12, 10 and 14 feet passing through Sy.Nos.25/1, 25/2, 22/4 and 25/4, which is a road subsequently created and not seen in the survey sketch.
4. With this, the petitioner herein though secured an order of permanent injunction by filing a original suit against respondents No.2 and 3 and another person, the issues framed in the said suit does not touch the existence of nakashe road, which was not the subject matter of the said suit. It is also seen in the said suit, no steps are taken by the parties to get the land measured through the Survey Department with reference to nakashe road, which is shown to be in existence in the survey sketch.
5. In that view of the matter, the judgment and decree passed in favour of the petitioner in the aforesaid suit and confirmed in the Regular Appeal would not enure to his benefit to challenge Annexure – ‘E’, which is pursuant to the survey report, based on the existence of village nakashe road. In that view of the matter, this Court is of the considered opinion that the order dated 20.03.2018 passed by the first respondent Tahsildar, Virajpet Taluk, does not call for interference by this Court. Accordingly, the writ petitions impugning the same is hereby dismissed. In view of dismissal of the writ petitions, pending interlocutory applications do not survive.
Sd/- JUDGE dh