DURAIRAJ Vs. G. KANAGARAJ AND OTHERS

JUDGEMENT

(1.) The appellant is a thirty party and aggrieved by the impugned order dated 09.06.2017, made in W.P.(MD) No.24320 of 2016, in and by which the impugned communication of the second respondent dated 09.11.2016 came to be quashed, has filed this Writ Appeal.

(2.) The first respondent/writ petitioner on an earlier occasion filed W.P. (MD) No.16667 of 2013 against the Executive Magistrate and Thasildhar, Thottium Taluk and Revenue Inspector, Kattuputhur Part, Thottium Taluk, Trichy District as well as against the appellant herein praying for issuance of a writ of certiorari to quash the order of the Executive Magistrate and Thasildhar, Thottium Taluk dated 20.09.2013 in Na.Ka.A1-5598-2013 and this Court while dealing with the facts has found that the first respondent herein filed suit in O.S.No.61 of 2007 on the file of the Court of District Munsif, Musiri praying for declaration and permanent injunction, which includes the land in S.No.245/23, Unniyur Village, Thottiyam Taluk and which according to the first respondent is his exclusive way to reach his property and similarly the appellant herein and another also filed a suit in O.S.No. 217 of 2009 on the file of the District Munsif, Musiri, praying for permanent injunction against the first respondent herein, restraining him from interfering with their right to use the disputed lane and in the plaint schedule the said lane is shown as a common pathway. This Court recording the facts that the suit filed by the first respondent came to be dismissed and the suit filed by the appellant came to be decreed, against which, A.S.Nos.133 and 134 of 2015 have been filed by the first respondent and the same are pending before the II Additional Sub Court, Tiruchirappalli, dismissed the Writ Petition vide order dated 07.09.2016 and no appeal has been filed against the said order. However, the first respondent in the affidavit filed in support of W.P.(MD) No.24320 of 2016 has not disclosed the said facts and appears to have made a prayer to quash the order of the 3rd respondent dated 09.11.2016, in and by which his request for measuring and surveying the land in Survey No.245/11 and 29, Unniyur Village, Tottiyam came to be rejected on the ground that civil suit is pending with regard to the northern side lane in S.No. 245/23. It is also to be noted at this juncture that the first respondent did not array the appellant herein as a party, though in the earlier round of litigation in W.P. (MD) No.16667 of 2013, he was arrayed as third respondent.

(3.) The learned counsel for the appellant would submit that the first respondent/writ petitioner has encroached upon the common lane in S.No.245/23, Unniyur Village and also started putting up construction and efforts are being taken by the revenue authorities to remove the encroachment made by the first respondent/writ petitioner upon the public lane. In the circumstances, suppressing the said material facts, the first respondent/writ petitioner got the impugned order and hence, prays for interference.