RAMKISHAN Vs. MAHESH AND STATE OF MP

JUDGEMENT

(1.) ORDER dated 16-1-12, passed by III Additional District Judge, Khandwa, passed in MCA No. 19/11 is being questioned vide this petition under Article 227 of the Constitution of India; whereby, an order dated 15-11-11 by Trial Court injuncting the respondent defendant for causing interference in the suit property has been reversed.

(2.) THE suit by the petitioner is for declaration and permanent injunction in respect of passage over Khasra No. 571 area 0.04 hectares used by the petitioner and his family members to reach land bearing Khasra No. 569/1, 569/2, 563/3, 564/3, 568, which as per plaint allegation belongs to the petitioner and his family members. An easementary right thereon having been claimed by the respondent/ defendant leading to an order dated 17-8-11 under Section 131 of M.P. Land Revenue Code, 1959 (hereinafter to be referred as 'the Code of 1959' passed by Additional Tehsildar, Khandwa, creating right of passage thereover in favour of defendant. Along with suit petitioner filed an application under Order 39 Rules 1 and 2, Code of Civil Procedure, 1908.

(3.) IN an appeal under Order 43 Rule 1 (r) of the CPC the Appellate Court intercepted the Trial Court's order on two counts, firstly, that a suit arising of a proceeding under Section 131 of the Code of 1959 is not maintainability and secondly there being an undertaking by the petitioner plaintiff recorded in the Panchnama to give the right of way to the respondent defendant, reverse the Trial Court order.