IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 OP(Crl.).No. 742 of 2011(Q) -------------------------------------- PDETITIONER (S): ------------------------- 1. V.K.SHAMSUDDIN,P.P.NO.14/92, PONNAMTHARAYIL,VETTAKKAL,CHERTHALA. 2. APPUKKUTAN.P.V,P.P.NO.14/93, PONNAMTHARAYIL,VETTAKKAL,CHERTHALA. 3. PAVITHRAN.P.V,P.P.NO.14/94,PONNANTHIYIL, VETTAKKAL.P.O,CHERTHALA. 4. THANKAMMA,P.P.NO.14/88, PONNAMTHARANIKATHU HOUSE,VETTAKKAL,CHERTHALA. 5. SARASAMMA,P.P.NO.14/87, PONNAMTHARANIKATHU HOUSE,VETTAKKAL, CHERTHALA. BY ADVS. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN RESPONDENT(S): ------------------------- 1. REVENUE DIVISIONAL OFFICER,ALAPPUZHA- 688 001. 2. JANAKI,W/O.PADMANABHAN,VAVAMPARAMBIL, VETTACKAL,CHERTHALA 688 524. 3. V.P.PRANJAN,S/O.PADMANABHAN, VAVAMPARAMBIL,VETTAKKAL,CHERTHALA 688 524. 4. V.P.MURALEEDHARAN,S/O.PADMANABHAN, VAVAMPARAMBIL,VETTAKKAL,CHERTHALA 688 524. 5. V.P.SUDARASANAN,S/O.PADMANABHAN, VVAMPARAMBIL,VETTAKKAL,CHERTHALA 688 524. 6. V.P.SABU,S/O.PADMANABHAN,VAVAMPARAMBIL, VETTAKKAL,CHERTHALA- 688 524. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== O.P(Crl.) No.742 of 2011 ==================================== Dated this the 01st day of March, 2011 J U D G M E N T Petitioners claimed to be owners of the small house plots and were allegedly using a pathway to reach their respective houses from the public road. They claimed that their only access to their respective houses is the said way and alleging that respondent Nos.2 to 6 caused obstruction to the user of the said pathway petitioners preferred a petition to the Sub Divisional Magistrate purportedly under Section 133 of the Code of Criminal Procedure (for short, “the Code”). The Sub Divisional Magistrate appears to have conducted some enquiry in the matter and heard respondent Nos.2 to 6 as well (before considering whether a conditional order is to be issued in the matter). The Sub Divisional Magistrate passed the impugned order, Ext.P9, on 06.12.2010 stating that the dispute is a private dispute regarding use of a way and hence petitioners have to seek redressal of their grievance through the civil court. Accordingly the proceedings were dropped. That order is under challenge. Learned counsel contended that respondent Nos.2 to 6 never contended that the disputed way is not a public way and that even O.P. (Crl.) No.742 of 2011 -: 2 :- Ext.P8, consent letter given by respondent Nos.2 to 6 show that it is a public way. 2. Initiation of proceeding under Sec.133 of the Code is permissible only when there is an unlawful obstruction or nuisance to any public place or any way which is or may be lawfully used by the public. In other words, the way in respect of which obstruction is allegedly caused must be a public way. It would appear that one of the beneficiaries of the disputed way filed O.S. No.879 of 1999 in the court of learned Munsiff, Cherthala concerning the said way and it resulted in Ext.P2, judgment. In paragraph 9 of the judgment learned Munsiff came to the conclusion that plaintiff in that case has acquired right of easement by way of prescription over the disputed way. Learned counsel does not dispute that the said finding is concerning the way in question. 3. It is pointed out that the said finding is concerning one of the beneficiaries of the pathway. It is difficult to think that so far as that beneficiary is concerned it is a private right arising from user of the disputed way as of right for more than 20 years as stated in Sec.15 of the Easements Act and so far as petitioners are concerned, it is public right over the said way. Individual, private right of several persons when clubbed together does not O.P. (Crl.) No.742 of 2011 -: 3 :- transform into a public right. Right claimed by petitioners for use of the disputed way is in relation to the dominant tenement of each of them and hence their private right. I must also bear in mind that nowhere in the petition preferred by the petitioners there is an allegation that it is a pubic way and instead they only stated that they have been the using the way from time immemorial. Exhibit P4 report of the Village Officer relied on by the petitioners also does not say that it is a public way. 4. What remained is Ext.P8, consent letter given by respondent Nos.2 to 6. There, they only stated that they have no objection in removing the tree that has fallen in their property through which petitioners are walking. From that, it cannot be said that there is an admission that there is a public way. It is in the above circumstances that the Sub Divisional Magistrate directed petitioners to approach the civil court. I do not find anything illegal or irregular in Ext.P9, order calling for interference. Original Petition fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv