IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 RSA.No. 383 of 2010() --------------------- AS.5/2007 of PRL.SUB COURT,THALASSERY OS.232/2005 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT/PLAINTIFF: ---------------------------------------- HAR AUTO PVT.LTD., A PRIVATE LIMITED COMPANY, REGISTERED UNDER INDIAN COMPANIES ACT AS REGISTER NO.90-14196/2000 HAVING ITS REGISTERED OFFICE AT KANNOTHUMCHAL, P.O.CHOVVA, IN KANNUR MUNICIPALITY, TALUK AND DISTRICT, REP.BY ITS MANAGING DIRECTOR, P.V.EQUBAL. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): RESPONDENT/DEFENDANT: ------------------------------------ THE CHOVVA EDUCATIONAL SOCIETY, A REGISTERED SOCIETY, HAVING ITS OFFICE AT CHOVVA, P.O.CHOVA, IN KANNUR TALUK AND DISTRICT, REPRESENTED BY ITS SECRETARY, MR.SUKUMARAN. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.383 OF 2010 -------------------------------- Dated this the 26th day of October 2010 JUDGMENT Plaintiff in a suit for declaration and injunction is the appellant. Plaintiff is a company which is conducting business in the sale of motor vehicles. Suit claim of declaration was sought for over 'B' schedule alleging that it is a public road used and enjoyed by the public and it is situate beside plaint 'A' schedule, the leasehold under its possession and enjoyment. The defendant, a society, which is running a school, contended that the 'B' schedule described in the plaint formed part of the school compound, and denied the case of the plaintiff that it is a public road. The right of the plaintiff to use the property scheduled as 'B' schedule was also denied in unequivocal terms by the defendant. The trial court, on the materials placed, found the contentions raised by the defendant more probable and acceptable, and in that view of the matter the plaintiff was nonsuited. Challenge against the dismissal of the decree rendered by the trial court by way of an appeal by the plaintiff/appellant was turned down by the lower appellate court. Concurrent decision so rendered by the two courts below is sought to be impeached in the second appeal. R.S.A No.383 OF 2010 - 2 - 2. I heard the learned counsel for the appellant. It is submitted that both the courts have misconstrued and misappropriated the materials tendered and that resulted in forming wrong conclusions leading to injustice. Plaintiff has produced sufficient materials to sustain the suit claims raised for declaration and also injunction applied for is the submission of the counsel. Perusing the judgments rendered by the courts below, it is seen, the plaintiff, in evidence, gave a conflicting and inconsistent version than what was pleaded to claim the relief raised in the suit over 'B' schedule by stating that portion of that property belong to the defendant. The learned counsel for the plaintiff would state that in reexamination, the power of attorney holder of the plaintiff, who was examined as PW1, had corrected that mistake and undue significance and importance was given to that inadvertent mistake made by the witness by both courts to hold that the evidence tendered was conflicting with the case canvassed by the plaintiff over 'B' schedule. Be that as it may, the crucial question involved in the case is whether 'B' schedule is a public road. In the case, where the defendant had contended specifically that it formed part of a school compound and it has got exclusive title and possession over the same, to sustain the suit claim for declaration as a public road, the plaintiff was bound R.S.A No.383 OF 2010 - 3 - to prove that it was so or it has become so by dedication to the public. No material, whatsoever, was produced by the plaintiff to show that 'B' schedule is a public road. When such be the case, there is no infirmity leave alone any impropriety in the conclusion formed by both the courts below on the materials placed that the plaintiff is not entitled to a declaration that 'B' schedule is a public road, and also for injunction against the defendant. No substantial question of law involved in the appeal, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv