IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 AS.No. 850 of 1996() -------------------- OS.539/1993 of SUB COURT,KATTAPPANA .................... APPELLANTS/PLAINTIFFS: ------------------------------------- 1. C.C. VARGHESE, S/O. CHACKO, AGED 52 YEARS RESIDING AT NEDUMPARA ESTATE, MAPPILASSERIL HOUSE, (CHERUPURACKAL), PARATHODU VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DIST. 2. GEORGEKUTTY, S/O. JOSEPH, AGED 38 YEARS, RESIDING AT PUTHUITTIL HOUSE, ERNAKULAM VILLAGE, KANAYANNUR TALUK, BY POWER OF ATTORNEY HOLDER, C.C. VARGHESE, DO. DO. BY ADV. SRI.GEORGE CHERIAN RESPONDENTS/DEFENDANTS: ------------------------------------------ 1. JOSEPH @ KUNJUKUTTY, S/O. KURIAN, AGED ABOUT 44 YEARS, RESIDING AT PANTHALADY HOUSE, ADUKIDANTHAN KARA, CHATHURANGAPPARA VILLAGE. 2. DEVASIA JOSEPH @ METHA BABY, AGED ABOUT 43 YEARS, RESIDING AT KANDATHIL HOUSE, ADUKIDANTHAN KARA, CHATHURANGAPPARA VILLAGE. 3. JOY, AGED ABOUT 43 YEARS, SUPERINTENDENT, NEDUMPARA ESTATE OF M.J. ABRAHAM, RESIDING AT ESTATE BUNGALOW, PARATHODU VILLAGE. 4. KARUTHAKANNU, AGED ABOUT 53 YEARS, WATCHER, NEDUMPARA ESTATE OF M.J. ABRAHAM, RESIDING AT ESTATE BUNGALOW, DO. DO. 5. APPACHAN @ APPAN, AGED ABOUT 43 YEARS, RESIDING AT MADUKKOLIL HOUSE, ADUKIDANTHAN KARA, CHATHURANGAPPARA VILLAGE. 6. JOY KALATHUKUNNEL, AGED ABOUT 41 YEARS, RESIDING AT KALATHUKUNNEL HOUSE, DO. DO. 7. SABU, S/O. ALIKKUTTY, AGED ABOAUT 38 YEARS RESIDING AT KARINTHKARA HOUSE, DO. DO. 8. M.J. ABRAHAM, S/O. JOSEPH, AGED 49 YEARS, RESIDING AT MAPPILLASSERIL HOUSE, NEDUMPARA ESTATE, PARATHODU KARA, DO. DO. ADV. JOSEPH & OTHERS (PARTY) SRI.S.VIDYASAGAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 19/08/2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO. 5089/96 IN A.S.NO. 850 OF 1996 DISMISSED 19.8.2009 SD/P M.L.JOSEPH FRANCIS, JUDGE /TRUE COPY/ M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 850 of 1996 - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of August, 2009 JUDGMENT The plaintiffs in O.S.539 of 1993 on the file of Sub Court, Kattappana are the appellants. The respondents herein are the defendants in the above suit. 2. The suit was originally filed before the District Court (Vacation) Thodupuzha and was later numbered as O.S.No.174 of 1993 on the file of Sub Court, Thodupuzha, which was later transferred to the Sub Court, Kattapana on its formation. 3. The suit was filed for permanent prohibitory injunction against the defendants from causing any obstruction in the reconstruction of the gate and culvert in the plaint schedule property destroyed by them and for damages and other reliefs. The first appellant is the owner in possession of the plaint 'A' schedule property. The 8th A.S.No. 850 of 1996 2 respondent herein is a paternal cousin of the first appellant and he owns property on the eastern and northern side of plaint 'A' schedule. The Kumaly-Munnar Road is passing through the west of the schedule property. All these properties were purchased by the appellants and the 8th defendant pursuant to an agreement of sale dated 11.7.1974. After taking possession of the properties, a motorable private road was constructed to 'A' schedule property by the appellants from Nedumpara vilak on Kumaly-Munnar Road. 4. The Parathodu-Thevaram Panchayath road is on the northern side of the plaintiffs' property. This road passes in between the property of the plaintiffs and the 8th defendant. The Panchayath road is used by the defendants and others for their traffic. The private road in plaint 'A' schedule property is in the absolute use and ownership of the first plaintiff. The private road, is extended to the panchayath road, since the first plaintiff has got extensive cardamom estate on the east of the plaint schedule property. A.S.No. 850 of 1996 3 5. During 1987, the 8th defendant along with his men destroyed the gate pillar and the Iron gate on the private road in the plaint schedule property, with the ulterior motive of bringing the above private road under his regular traffic. Thereupon, Crime No.191 of 1987 was registered against the 8th defendant and others and the police recovered the gate. 6. In the meanwhile, the 8th defendant filed O.S. 119 of 1987 before the Munsiff Court Devikulum for declaration of easement right over the private road, in the plaint schedule property. The said suit was dismissed and appeal, A.S.No.145 of 1989, before the District Court, Thodupuzha was filed by the 8th defendant. When the 8th defendant tried to use the road by force, the first plaintiff filed O.S. No. 34 of 1988 before the Sub Court, Thodupuzha. All these cases were compromised at the instigation of mediators and the 8th defendant alone was allowed to use the above private road, considering the relationship of the parties. As per the compromise, the gate was also constructed in its place and it is guarded by watchman. A.S.No. 850 of 1996 4 7. After settling the dispute by compromise the 8th defendant with the help of other defendants tried to convert the private road as a public road. On 7.4.1993 at about 7.30 p.m. the defendants demolished the gate pillar and culvert on the private road of the plaintiffs. The matter was reported to Nedumkandom Police and they have registered crime No.103 of 1993 against the defendants. The defendants have no right to use the road passing through the plaint schedule property. They have caused illegal loss to the plaintiffs. 8. The defendants 1, 2, 5 and 8 filed written statement contending that the private road starting from Nedumpara Vilak has been used by the public for the last 50 years. The 8th defendant also contended that the said road was used as a public road for over 40 years. Alternatively he contented that he has right of easement over the said road. 9. On the basis of the pleadings, the learned Sub Judge raised eight issues. The evidence case consists of oral evidence of Pws.1 to 6 and Dws.1 to 5, Exts.A1 to 33, B1 to B8, Court A.S.No. 850 of 1996 5 Exhibits C1 and C2 and 3rd party Exhibits X1 to X2(a). The learned Sub Judge, on an appreciation of the evidence, came to the conclusion that the first appellant is the absolute owner in possession of plaint 'A' schedule property. But the learned Sub Judge found that the road in dispute is not a private road, exclusively belonging to the first plaintiff and dismissed the suit with costs. Against that judgment and decree plaintiffs 1 and 2 filed this appeal. 10. Heard the learned counsel for the appellants, who submitted that the learned Sub Judge went wrong in holding that there is insufficiency of evidence to hold that the disputed road is a private road after finding that the plaintiffs have title and possession over the plaint A schedule property. The learned counsel for the appellants further submitted that the appellants have no objection in using the disputed road by the 8th defendant. In the appeal memorandum, it is stated that the real dispute is between the plaintiffs and the 8th defendant and the other defendants are the henchmen of the 8th defendant. A.S.No. 850 of 1996 6 11. The main prayer in the plaint is to issue an order of permanent prohibitory injunction restraining defendants 1 to 7 or their men from entering into the plaint A schedule property. In the plaint, plaint A schedule property is described as 7 acres 23 cents in Sy.No. 14/5A. In the plaint schedule, the disputed road is not scheduled. The details regarding the disputed road are not given in the plaint schedule. The disputed road starts from Nedumparavilakku in Kumili - Munnar road and passes through plaint A schedule property. The first plaintiff claims exclusive title and possession of the plaint A schedule property on the basis of Ext.A1 Sale Deed No.4211/1978. The property belonging to the second plaintiff is not included in the plaint schedule. 12. It is an admitted fact that the plaintiffs and the 8th defendant are close relatives. There is no dispute that Nedumpara Estate consisting of 110 acres, which was originally belonged to one A.S.R. Kanakaraj Chettiar of Tamil Nadu, was purchased by the plaintiffs, 8th defendant and their relatives as per the agreement in 1974 and the Sale Deeds were executed in 1978. Exts.A22 and A.S.No. 850 of 1996 7 A24 are the copies of the sale deeds in the name of the 8th defendant and Ext.A23 is the copy of the sale deed in the name of 8th defendant's wife with regard to the property purchased by them from the 110 acres of Nedumpara Estate. It has come out in evidence that during 1987 difference of opinion arose between the first plaintiff and the 8th defendant with regard to the disputed road and a number of civil and criminal cases were filed against each other. Ultimately, the dispute between them was settled by a mediation and as per Ext.A4 agreement dt. 3.3.1991, permitting the 8th defendant to use the disputed road and all the civil cases and criminal cases between them were withdrawn. 13. The second plaintiff was examined as PW2. He deposed that the disputed road passes through his property and his brother's property. PW2 admits that the employees from Tamil Nadu are using the road as a short cut to go to Nedumkandom. PW2 deposed that he has no objection for anybody using the disputed road. The first plaintiff, who was examined as PW1, admits that the disputed road starts from Nedumparavilakku and reaches near the gate of A.S.No. 850 of 1996 8 the 8th defendant and then goes to the east and reaches a place called Aadukidanthan. PW1 admits that the disputed road which starts from Nedumparavilakku passes through the property of Vadivel Gounder and then goes through the property of Santhosh and Georgekutty. Santhosh and Vadivel Gounder are not parties to the suit. PW1 admits that the disputed road passes through the private property of Santhosh and Vadivel Gounder and that he has no right over that property. 14. PW1 deposed that the dispute between himself and 8th defendant arose in 1987 and till then the 8th defendant was using the disputed property for going to the house of the 8th defendant. Since the disputed road passes through the property of other persons, the plaintiffs cannot claim exclusive right over the disputed road and as such the plaintiffs cannot contend that the disputed road is a private road belonging to them. 15. The first defendant was examined as DW1 and the 8th defendant was examined as DW2. They deposed that the disputed road is about 50 years old and it was formed by one Kanakaraja A.S.No. 850 of 1996 9 Chettiar, the predecessor in interest of Nedumpara estate and the people at large of Adukidanthan and other localities are using the disputed road as a passage. Since the disputed road is not a private road belonging to the plaintiffs they are not entitled to get any injunction with regard to the use of the road by the defendants. Therefore, the learned Sub Judge is justified in refusing the prayer of the plaintiffs with regard to the prohibitory injunction. 16. Another question to be considered is whether the defendants destroyed the gate and culvert and caused any damage to the plaintiffs. PW1 deposed that on 7.4.1993 at about 7.30 p.m. defendants 1 to 7 under the leadership of 8th defendant came to the plaint schedule property with some other persons, who came in four jeeps and demolished the southern gate pillars and removed the gate and also destroyed the culvert resulting in damage to the tune of Rs.5,000/- and Rs.20,000/- respectively. PW3, who claims to be an eye witness to the incident, is a close relative of the plaintiff. PW2, who is the second plaintiff, is not an eye witness to the incident. The evidence on record shows that there are a number of A.S.No. 850 of 1996 10 workers who are residing near the disputed road. But none of them was examined by the plaintiffs as witness to prove the incident. In the absence of any reliable evidence the learned Sub Judge is fully justified in finding that the plaintiffs have not proved the alleged demolishion. Therefore, the plaintiff are not entitled to get any damages from the defendants. The result is that this appeal is to be dismissed as it is without any merits. 17. Accordingly this appeal is dismissed. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) Judge tm