Smt Meharunnisa vs The Assistant Revenue Officer Hebbal Range and Others

Ravi Malimath, J.—The case of the petitioner is that the third respondent and his wife have put up a residential shed on the middle of the public road facing the property of the petitioner. Due to such construction, the entire road is blocked. That proceedings were initiated by the petitioner against the third respondent before the city civil Court, Bangalore to take possession of the property. That the suit filed by the third respondent has also been dismissed. Therefore the present petition seeking for a writ of mandamus to direct the respondent-Corporation to demolish the wall which is laid by respondents 3 and 4 without leaving any set back adjoining the wall of the petitioner on the northern side. Learned counsel for the petitioner is absent. Heard Sri. Sandeep Patil for respondents 1 and 2; Sri. Mohan Bhat, for respondents 3 and 4 and Sri. Avanthi Ravindranath, for respondent No. 5.

On hearing learned counsels, I do not find any merit in this petition. The plea of the petitioner is to direct the respondents to demolish the wall which has been constructed without leaving any set back. The plea put forth by the petitioner is that it is an illegal construction. In the statement of objections filed by the Corporation, they have narrated the fact that the third respondent had filed a suit for permanent injunction against the petitioner, which was subsequently dismissed and the appeal filed against the said order was also withdrawn. During the pendency of the proceedings, respondents 3 and 4 dispossessed the petitioner from the schedule property. Therefore, the petitioner has filed a suit for declaration and possession in O.S. No. 4422/09 and respondents 3 and 4 were restrained from creating any third party interest on the suit schedule property. Even as on date the said suit is still pending. Therefore, I'' am of the considered view that it is the civil Court that will have to adjudicate upon the rights of the parties. The plea as to whether it is a public road or private road cannot be gone into in a writ jurisdiction. It is the civil Court which would have to decide the same and necessarily the petitioner has approached the civil Court in O.S. No. 4422/09, which is still pending. In the circumstances, no writ would lie.

In the result, the petition being devoid of merits is dismissed.