IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 SA.No. 721 of 1999(C) -------------------- AS.178/1996 OF IST ADDL.SUB COURT, KOZHIKODE OS.973/1992 OF PRINCIPAL MUNSIFF COURT, KOZHIKODE-I ................... APPELLANTS / APPELLANTS 2 TO 4 / PLAINTIFFS 4 TO 6 : ------------------------------------------------------------------------------------ 1. V. ALI, S/O. AHAMMEDKUTTY HAJI, VENGANGAL HOUSE, RAROTH AMSOM, VEPPOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 2. V.K. HUSSAIN, S/O. AHAMMEDKUTTY HAJI, RAROTH AMSOM, VEPPOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 3. P.K. SAFIA, D/O. P.K. MUHAMMED, RAROTH AMSOM, VEPPOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.A.K.MADHAVAN UNNI RESPONDENTS / RESPONDENTS AND 1ST APPELLANT / DEFENDANTS & ------------------------------------------------------------------------------------------------------- PLAINTIFFS 1, 2 & 3 : ------------------------------- 1. M/S. MALABAR PRODUCERS AND RUBBER CO. LTD., VEPPOOR ESTATE, RAROTH AMSOM, VEPPOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT (DEFENDENT NO.1). 2. JOLLY THOMAS, FATHERS NAME NOT KNOWN, VEPPOOR ESTATE, RAROTH AMSOM -DO- -DO- (DEFENDENT NO.2). 3. PURAYIL AHAMMED KUTTY, FATHERS NAME NOT KNOWN, RAROTH AMSOM & DESOM -DO- -DO- (DEFENDENT NO.3). 4. P.K. MUHAMMED MAISTRY, S/O. ABDULLA, KOORIMUNDA, RAROTH AMSOM & DESOM -DO- (PLAINTIFF NO.1). ...2/- SA.No. 721 of 1999(C) -2- 5. K.M. MOIDEEN, S/O. KOYAKUTTY, MANNIL HOUSE, RAROTH AMSOM & DESOM, -DO- -DO- 6. C.A. MOHANAN, S/O. APPUKUTTAN, RAROTH AMSOM & VEPPOOR DESOM -DO- -DO- R2 BY ADV. SRI. M.K.S..MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P.BHAVADASAN, J. ------------------------------------- SA No.721 of 1999 ------------------------------------- Dated this the 26th day of May 2011 Judgment Plaintiffs 4 to 6 in a representative suit as OS No.973/92, agitating a claim for public road, who failed in their attempts before both the courts below, are the appellants. The short facts necessary for the disposal of the case are the following : 2. The plaintiffs and others were residing in the vicinity of Veppoor Estate and Koorimunda area. The estate is owned by the first defendant company and managed by defendants 2 and 3. The plaintiffs claim that there is a public road running through the estate and used by the public for more than 30 years. The road has a length of 2.5 km out of which 1 km. passes through Veppoor Estate and this is the only means of access to about 20 families residing in the area. It was claimed that the maintenance of the road was being carried out by the SA 721/99 2 persons, who were using it under the leadership of the first plaintiff. The suit was instituted, when the defendants threatened to obstruct the use of the way by the plaintiffs. 3. The suit was resisted by the defendants, pointing out that the allegations in the plaint are untrue and contrary to facts. There is no public road as claimed by the plaintiffs and the road was laid by the owners of the estate for their use. The road is being maintained by the estate itself and the claim to the contrary is denied. On the basis of these allegations, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 5 and documents marked as Exts.A1 to A17 from the side of the plaintiffs. The defendants had DW1 examined and Exts.B1 to B3 marked. CW1 was examined as court witness and Exts.C1 and C2 are the commissioner's report and plan. 5. The trial court, on an evaluation of the materials available, found that the claim of public road has SA 721/99 3 not been substantiated as there is no proof to show that it was being used as claimed by the plaintiffs and accordingly dismissed the suit. 6. The supplemental plaintiffs 3 to 6 carried the matter in appeal as AS No.172/1996 before the District Court, Kozhikode. The lower appellate court, apart from considering the merits of the case, also considered the contentions regarding deprivation of opportunity to examine the supplemental plaintiffs as witnesses and also to amend the plaint. The lower appellate court found them to be untenable and accordingly dismissed the appeal, confirming the judgment and decree of the trial court. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1. Are not the additional plaintiffs entitled to get themselves examined and to adduce evidence in support of their claims in a suit where rights of many are involved even though the first plaintiff and witnesses are already examined ? 2. Not a supplemental/additional plaintiff entitled to seek amendment of the plaint when it becomes necessary ? SA 721/99 4 3. Are the courts below right in rejecting the application for amendment of plaint and for permission to adduce evidence without a considered order ? 4. Is not a plaintiff entitled to a decree for injunction when right of easement by necessity due to severance of tenements and long user is proved even when right as a public is not proved ? 8. The learned counsel for the appellants addressed the two points raised before the court below before this court also and pointed out that the denial of opportunity to the appellants to adduce evidence when they found that PW1 has given evidence against them and also to amend the plaint, has caused serious prejudice to them and has resulted in miscarriage of justice. In the facts and circumstances of the case, the interlocutory applications ought to have been allowed and the appellants allowed to establish their case. 9. The learned counsel for the respondents, on the other hand, pointed out that it is not as if a solitary SA 721/99 5 witness was examined on behalf of the plaintiffs, who turned hostile to the claims made by the plaintiffs. As many as six witnesses were examined and the plaintiffs had no case that all of them deposed against them. As regards the amendment of the plaint, it was pointed out that if allowed, it would change the character of the suit and therefore, dismissal of both the interlocutory applications was justified. 10. Regarding the merits of the case, there is absolutely no evidence to show that the road in question was used as a public road and both the courts below were perfectly justified in their conclusions and the judgment and decree of the courts below do not call for any interference. 11. There seems to be considerable force in the submissions made by the learned counsel for the respondents. The claim of the plaintiffs, going by the averments in the plaint, was that out of the 2.5 kms. Of distance, about 1 km was a public road and the remaining portion was a private road. At the time of evidence, their SA 721/99 6 stand was that the entire road was a public road. A perusal of the schedule to the plaint would show that only a portion is shown as a public road. Thus, it could be seen that the pleadings and evidence are inconsistent and the plaintiffs have no consistent case at all. 12. As rightly pointed out by the learned counsel for the respondents, it is not as if that only a solitary witness was examined on behalf of the plaintiffs, who, quite contrary to the expectation of the plaintiffs, deposed against the interest of the plaintiffs and that necessitated the appellants to put in necessary applications. As many as six witnesses were examined on behalf of the plaintiffs to prove their case. The appellants have no case that all of them have deposed against the plaintiffs. More over, the lower appellate court has also given cogent and convincing reasons for not allowing the I.A. filed by the appellants. 13. As regards the amendment of the suit was concerned, it would change the character of the suit. Therefore, it was rightly rejected. SA 721/99 7 14. There is absolutely no evidence to show that there has been any dedication of any road by the owner of the estate. There is also no evidence to show that the road is vested in the local authority to characterise it as a public road. Even though the appellants have claimed that they maintain the road, no evidence was adduced to prove that. There is absolutely no evidence also to prove that the road in question is a public road as claimed by the plaintiffs and the defendants have no manner of right over it. The conclusions drawn by the courts below are on the basis of the evidence adduced and no substantial questions of law arise for consideration in this second appeal. The second appeal is without any merits and it is accordingly dismissed. No costs. P.Bhavadasan, Judge sta SA 721/99 8 SA 721/99 9