HIGli CQURT 9F CHHATTISGARfl, BILASPUR Writ Petition {Cl No. 5791 of 2906 Respondents ,l Defendant No. 2 Defendant W03 Defendant No.4 Defeadansl No.5 Petitigaer ,1 Plaintiff Dharamdas Meghani, S f‘ o— Late Aged about 56 years, R/G— Gudhiyan', Raipur, Dist; Raipur, Chhattisgarh. Versus Kamlesh Tiwari, Aged about 46 1) years, S/o- Late Sbn’ Durga Prasad Tiwari, Director Nexses Buildcem Pvt. Ltd., Sanjay Gandi Chowk, Jaimata Di Complex, Nahaxpara, Raipur, Chhattisgarh §efendant iWoJ 3} 3! Smt. Vidya Bai Meghani, Aged about 58 ycarS, Wio- Shri Jairalndas Meghani, R/o— Alankar Industn'ss, Near 01d Targhar, House No. 19I 174 , Gudhiyari, Raipur, Chhattisgarh. State of Chhanisgarh, Through— Collector, Raipur, Chhattisgarh. 4) Naib Tehsildar, Mandir Hasoud, Tehsil Office, Raipur, Chhatiisgarh. 5i Halka Patwari, Patwari Halka No. 67, Ra.Ni.M. Mandir Hasoud, Tehsil— Arang, Distt. Raipur, Chhattisgarh. gypearance: Shri Pankaj Shn'vastava, counsel for the petitioner. Shri Ratan Pusti, counsel for respondent No. 1. Shn' BP. Shanna mid M.L. Saket, counsel for respondent No.2. Sum! Kama: Sinha, J. {1) This is a petition filed under Article 227 of the Coastitution of Iodia praying for quashment of the. order dated 19092006 @assed in misc, civil appeal No. 7/2006 by the Additional District Judge (FTC), Raipur: The aforesaid civil apoeal was filed against, QRAL ORDER (i6.03.2007) 1 i. I \ W ‘ Sugnamal Meghani, @ “Lam. m.5791/g006 ,Zw the order dated 28.6.2006 passed 11y the First Civil Judge, Chss-N, Raipur in civil suit N0. 202 A! 2006. Q) The hrief facts are that thf: p1aintifT, pefi‘rjanar herein mad a suit for declaratian of titlf: and 1161mancmt injnnctim] in reiation t0 suit land imaiing Khasra N0. 820 Situated in viiiage Uman'ya, Tehsi] 8v. District Raipur (CG). In the aforesaid civil suit, an appiication for temporai‘y iixjunction under Order 39 Rule 1 8r, 2 of the: C.P.C. was; aisn filed 11y the gaiaintii‘f praying that riefendant No.2 or his agents he mtrained from using the: aforesaid Khasra number as path way during the gandency of the said civii suit. Learncad trial Court, after hearing the parties, aiiowed the aforesaid application and granted temporary iiJjunciion in favour of the plaintiff and restrained defendant No.2 or his agents from using Khasm No.820 as the path way 1ill the iinal decision, ofthe suit. (3) Being aggrieved with the aforesaid order nassed hy the. trial Court, defendant No.2 filed a. misc.'appeal under Order 43 Rule a l(r) of C.P.C. ’l‘he said appeal was allOWed and the learned \‘appellate Court set aside the injunction order granted in favour of the plaintiff. lt is against this order, passed hy the appellate Court in misc. appeal No. 7/2006, the petitioneriplaintitT has filed this writ petition. (4) The submission of learned counsel for the petitioner is that the lower appellate Court committed an error of law in holding that there Was no prima facie case. for granting injunetion to the plaintiff and therehy Vacating the injunction granted in his favour hy the trial Court. He submits that in Para-5 of the impugned \(o/rder, . it has heeu mentioned that the State authorities, who were k \ i \ i \ W.P.!C}. Nm5791l200 _ r _3_ defendants No. 3 to 5 before fha trial Coutf, have: also submitted their rep1y to the extent that Khasra No. 820 was a 13nd of ownership of the piaintjff and in the revenue records it has not been shown as path-way or the road and in the Khasra Pancheaia of year 2004-2005, it has been mentioned as Nzji Rasta, in its Kajiyat Cohunn. In Revenue Case No.8 A/O6i2003, the Tehsiidar as wel] as in Revenue Appeal Not 3O A[O6[2004-2005, the 8.0.0,, both have held that it was net a gmhlie way. (5) Learned counsel for the petitioner submits that on the basis of an alleged agreement between the ancestors of the plaintiff and defendant No.1, it is stated that it was decided between all the family members that the portion of this Khasra number shall be used as a private path for them, meaning thereby that it shall not he used as a public path-way, however, challenging this order, a proceeding hefme the Tehsildar was tiled which was decided in favour of the plaintiff and the appeal tiled against the aforesaid orderwas also dismissed by the S.D.O. He submits that atter that, a. petition in the High Court was tiled against the said order by one Mohini Devi Meghani, which is pending for disposal before this Court, in which, the ordels passed hy the two Courts below have been stayed. His submission is that even, if the aforesaid agreement is given respect to, that will only pmvide a permission to the family members of the petitioner} plaintiff to use the path way as their private path way and it shall not he treated as public path way. Therefore, the trial Court, had rightly granted injunction. in a, favour of the petitioner and againstdefendant No.2 restraining l ‘Kdefendant i No.2 from using the said land as a public path way W.P.(C}e NQ.5791 l2mm -Zf_ because admittadly d€fendanf N02 was not a memhar of the plaintiff’s; fami1y and 116 was having no right to use. that land on the basis of allaged agreament entemd into between the family members of the plaintiff and dafendant No. 1. (6) AdmiHedly, defendant No2 is: strangm‘ to the family of plaintiff and defandanf No.1, and ,he is Claiming hiS right on the ba$is of sale—deed which is said to have been executed in his favour which mlatos to Klmsra Nos. 796 8r. 800. He claims right over the path-way on. the basis of a recital in the sale deed and also easementary rights over the said path after {hitchesing the said property from defendant N0. 1.. ('7) The question of controversy hetween the parties is as to Whether Khasra No. 820 can he treated as a public Way or not and Whether defendant No.2 shall get a tight to use this land as a public path way 011 the basis of a sale-deed. executed by defendant No. 1 in his favour and also on the liasis of his easementary rights on which the issues are still to be decided hy the trial Court. \ (8i At this stage, it would. not he possible for this Court. to express any opinion. on this point lint prim fncie an admitted position. appears to he coming forward that since the year 1994 Khasra No. 820 was admitted to he the path way for the family members of the plaintiff and defendant No.2 for which they had entered into an agreement. (9) Be that as it. may, in the opinion of this Court, a land which is being used as a private path-way by members of a particular family and which also gives approach, to the third person, if nsed y that person for a very short. period which shall he subject to the mmq. m,5791;2006 @ 6‘ final decision of their rights, it $115111 cartainhr cause no irreyarahle loss to the plaintiif and on this point, the lower appenate, Court was fully justified to Ieverse tha nwler passed by the: trial Court on the principles of equity. The rights of the parties are. stiH to be decided and if during the pendeney of decision on such points, defendant No. 2 is allowed. to use that path, ignoring his rights either on the hasis of said sale-deed or on the hasis of equity, it shall not cause any irTeparahle loss to the plaintiff. (l0) The lower appellate Court has not committed any error of law warlanting interference by this Court under Article 227 of the Constitution of India. The petition has no merits and the same is d ismissed. (11) However, looking to the controversy raised hy the parties, it is obsewed that the trial Court shall try to expedite hearing of the l y case at the earliest. Sd/- ‘ Sunil Kumar Sinha i Judge