IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 SA.No. 363 of 1997(B) --------------------- AS.91/1995 of SUB COURT, KASARAGOD OS.581/1990 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT/APPELANT/PLAINTIFF: ----------------- RUKMINI AMM, W/O. VISHNU BHATTA, RESIDING AT KANDERI OF KATTUKUKKE VILLAGE, KATUKUKKE P.O., KASARAGOD TALUK, KASARAGOD DISTRICT, RPRESENTED BY HER POWER OF ATTORNEY, SREEKRISHNA PRASAD.K., S/O.VISHNU BHATTA, RESIDING AT -DO- -DO- BY ADV. DR.P.S.KRISHNA PILLAI RESPONDENTS/RSPONDENTS/DEFENDANTS: --------------------- 1. ENMAKAJE GRAMA PANCHAYAT AT PERLA, ENMAKAJE VILLAGE, P.O. PERLA, KASARAGOD DISTRICT, REPRESENTED BY ITS EXECUTIVE OFFICER. 2. CHOMA MUNGALIKANA, S/O.KANDA, RESIDING AT MUNGALIKHANA OF KATTUKUKKE VILLAGE,' KATTUKUKKE P.O., KASARAGOD TALUK, KASARAGOD DISTRICT. 3. GURUVA MUNGALIKANA, FATHR'S NAME NOT KNOWN, -DO- -DO- THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.363 OF 1997 ------------------------------- DATED THIS THE 15TH DAY OF JULY, 2010 JUDGMENT Advocate Sri U.P.Kunikullaya was the counsel engaged by the lst respondent. He died pending appeal. The lst respondent alone contested the appeal. Finding that the counsel is no more, this Court directed the Registry to issue notice to the lst respondent in order to afford an opportunity to him to appear in person or to engage a lawyer. The lst respondent accepted the notice; but he did not appear in Court. Therefore, the appeal was heard and disposed of, after hearing the counsel for the appellant. 2. The plaintiff in O.S.No.581/1990 on the file of the Munsiff's Court, Kasaragod is the appellant. The suit was filed for permanent prohibitory injunction restraining the defendants from trespassing into plaint A schedule property and from forming any foot-path through the plaint A schedule property. The trial court dismissed the suit. The Lower -2- S.A.363/97 Appellate Court allowed the appeal in part and granted a decree of injunction restraining the defendants from widening the existing public pathway in plaint A schedule property or forming any new pathway therein. The Lower Appellate confirmed the finding of the trial court that there is a public pathway through the plaint A schedule property and that the pathway is being used by the public. The parties are hereinafter referred to the plaintiff and defendants as arrayed in the suit. 3. Admittedly, plaint A schedule property belonged to the plaintiff. He got assignment in the year 1973. The extent of property is 2 acres and 38 cents. The plaintiff is residing in the house situated in plaint A schedule property. Plaintiff's case is that defendants 2 and 3 and their men are trying to create a new pathway through the plaint A schedule property, that they have taken the Executive Officer of the Panchayat into confidence for doing the unlawful act and that on 19/11/1990 they attempted to form a foot path through plaint A schedule -3- S.A.363/97 property. Therefore the suit was filed praying for the aforesaid reliefs. 4. The lst defendant is the Panchayat and defendants 2 and 3 are the persons residing in the locality. The defendants contended that there is a pathway passing through the suit property which proceeds from Kuriyathadka to Munglikana to Khanderi and proceeds further to Panaje in Karnataka State. It is contended that the pathway passes through the plaintiff's property is being used by the public since time immemorial and that the pathway is the continuation of the Panchayat road, Adkasthala-Katukukka. 5. The prayer in the plaint is for permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property and from forming a foot path through the said property. The title of the plaintiff is not seriously challenged or disputed. The courts below also found that the plaintiff got title to the plaint A schedule property. -4- S.A.363/97 Exts.C1 and C2 are plans and Exts.C3 and C4 are reports submitted by the Commissioner. In Exts.C3 and C4 reports the Commissioner reported that there is wicket gate on the north- west of the suit property marked as 'K' in Ext.C3 plan and also reported that from the said wicket gate the existing pathway 'P' is seen widened to a width of one metre and to a length of about 15 metre as shown in the plan. Ext.C3 report is dated 15/6/1991. Three years later, the Commissioner submitted Ext.C4 report dated 8/11/1994 in which the Commissioner noted that wicket gate 'K' which existed on the north-west of the suit property is seen removed and further noted that the same is lying in the rain water channel situated nearby. He also reported that the foot bridge referred to in Ext.C3 report is also seen lying in the rain water channel. The Commissioner further reported that in the place of old foot bridge a new foot bridge is seen formed by using two pieces of electric cement poles. The Commissioner further reported that the formation of new foot bridge by using -5- S.A.363/97 electric cement poles was prior to the Commissioner's visit on 7/8/1993. It is also reported that the Commissioner could see the freshness of the stones placed on either side of the cement poles to tighten the foot bridge. 6. The defendant contended that there is a public foot path passing through the plaint A schedule property and it is used by the persons in the locality and also by the children in order to go to school. The Panchayat contended that the foot path passing through the plaint schedule property is vested in the Panchayat. 7. The plaintiff has no case that there is no pathway passing through his property. According to the plaintiff, the pathway, which is noted by the Commissioner in his plans and reports, is the private pathway that leads to his residence. The plaintiff also submitted that he had erected two wicket gates on the western extreme boundary and also on the eastern extreme boundary of his property and he is using the pathway -6- S.A.363/97 exclusively as of right. It is not correct to say that the public or school children are using the pathway. The trial court accepted the Commissioner's reports and plan and held that the reports are reliable. The Commissioner reported about the two wicket gates situated in the respective places as contended by the plaintiff. The Commissioner reported in his second report that one wicket gate was removed and the foot bridge was seen replaced by a new foot bridge. The Commissioner further reported that the wicket gate on the western boundary and the old foot bridge were lying in the rain water channel situated nearby. In the reports and plans the Commissioner narrated the fact that there is a pathway leading to the residence of the plaintiff. The Commissioner did not report that the pathway is a public pathway used by the public. At the same time, the Commissioner reported that there are wicket gates on either side of the pathway inside the plainiff's property. It is an indication that the plaintiff is using the pathway exclusively. The Commissioner's reports and plans show that -7- S.A.363/97 there was an attempt to widen the pathway through the plaint A schedule property. The Commissioner reported that the foot bridge has been removed and the pathway in the plaint schedule property was widened to a length of 15 meters. That also shows that the plaintiff has got cause of action for filing the suit. 8. The Lower Appellate Court quite contrary to the normal logical conclusions held that the existence of the wicket gates and the fact that the pathway was in existence even before Ext.A1 are sufficient to hold that the pathway marked by the Commissioner is a public pathway in continuation of the Panchayat Road. I do not think that the conclusions arrived at by the Lower Appellate Court that the pathway passing through the plaint schedule property is a public pathway are correct. The court below placed reliance on the evidence of Executive Officer and DW-2, who was an elected member of the Panchayat. It has come out in evidence that the Executive Officer took charge only during the pendency of the suit. The evidence on record shows -8- S.A.363/97 that defendants 2 and 3 are interested persons. They are admittedly the workers of DW-2, who was the convenor of the beneficiary committee, who had udertaken the work of widening the pathway in the plaint schedule property. Both the courts below disbelieved the plaintiff and believed Dws.1 and 2 and held that the foot path running through the plaintiff's property is a public pathway. The plaintiff relied on Exts.A1 and A13 to contend that there is no public pathway running through his property. The defendants relied on Exts.B2 to B5 in support of their contentions. Ext.B2 is a copy of the extract of registers of roads maintained by the lst defendant-Panchayat. Ext.B2 does not show that the road mentioned therein namely, Kuriathadka- Munglikana-Kanderi is passing through plaint A schedule property. This is the important document relied on by both courts below. Exts.B3, B4 and B5 are the minutes of the Panchayat meeting, which show that the Panchayat has taken a decision to repair the road mentioned in Ext.B2. I do not think -9- S.A.363/97 that Exts.B2 to B5 will lead to the conclusion that the foot path running through the plaintiff's property is a public pathway. I do not find any reason to relate Exts.B2 and B5 and the pathway now in existence in plaint A schedule property. 9. The trial court placed reliance on Ext.B3 to B5 resolutions and held that these documents evidence that the defendant Panchayat passed resolutions for repairing the foot path and that the evidence of Dws. 1 and 2 probabilises that public pathway is passing through plaint A schedule property. I do not think that there is any basis for finding that the resolutions were passed in relation to the pathway running through plaint A schedule property. DW2 is a person entrusted with the work of widening the pathway running through plaint A schedule property. He is interested in carrying out the work and therefore, he is an interested person. DW1 is a person who has no knowledge about the nature of the pathway running through the plaint A schedule property, since he took charge as the Executive -10- S.A.363/97 Officer only during the pendency of the suit. Therefore, placing reliance on the oral evidence tendered by the defendants and not placing reliance on the evidence tendered by the plaintiff are also without any basis. The survey sketch also does not show that there is a public pathway running through the plaintiff's property. 10. The existence of pathway in the road register was taken as a fact which probabilises the case of the defendants that the disputed foot path is a public pathway. I have already examined Ext.B2 road register and opined that Ext.B2 does not show that it relates to the pathway running through the plaint A schedule property. Both courts did not understand the scope and ambit of the suit. The prayer of the suit is very limited. The plaintiff prayed for an injunction restraining the defendants from trespassing into the plaint schedule property and from forming any footpath through plaint A schedule property. The plaintiff denied the fact that there is a public pathway running through his property. The suit is for injunction simplicitor. The only question -11- S.A.363/97 to be decided in the suit is as to whether the plaintiff is entitled to a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property and from forming any new footpath. For deciding the said issue the nature and character of the pathway in existence is not at all necessary. Admittedly, the plaint A schedule property belongs to the plaintiff. He has got every right to enjoy the property. Neither the Panchayat nor Dws.1 and 2 have any manner of right to interfere with the peaceful possession and enjoyment of the plaint A schedule property by the plaintiff. They have no right to form a new pathway nor any right to widen the existing pathway. The Panchayat can form a pathway through private person's land only by resorting to acquisition or other modes known to law. Nobody can take law in their own hands to widen the existing pathway or to form a new pathway through the private property. For these reasons the plaintiff is entitled to the reliefs sought for in the plaint. The finding of the courts below that the existing -12- S.A.363/97 pathway running through plaint A schedule property is a public pathway is set aside. The said question is left open to be decided in an appropriate suit, if so advised. In the result, the appeal is allowed. Decree is passed granting permanent prohibitory injunction restraining the defendants from widening the existing pathway and also from forming a new pathway in the plaint A schedule property. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv -13- S.A.363/97 HARUN-UL-RASHID,J. -------------------------- S.A.NO.363 OF 1997 -------------------------- JUDGMENT 15th July, 2010