IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 RSA.No. 147 of 2011() --------------------- AS.157/2009 of ADDL. DISTRICT COURT, PARAVUR OS.340/2007 of MUNSIFF COURT, N. PARAVUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. MAYA DEVI.K.V., W/O.E.A.JAYAKUMAR, AGED 41 YEARS, 4/6/15, ETTIYEDATH, PADINJARA PUTHANPURA, ELOOR SOUTH, UDYOGAMANDAL.P.O., ERNAKULAM DISTRICT. 2. E.A.JAYAKUMAR, AGED 45 YEARS, S/O.AYYAPPAN PILLAI, 4/6/14A, ETTIYEDATH, PADINJARA PUTHANPURA, ELOOR SOUTH, UDYOGAMANDAL.P.O., ERNAKULAM DISTRICT. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): RESPONDENT/DEFENDANT ---------------------------------------------------------------- ELOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, ELOOR GRAMA PANCHAYATH, UDYOGAMANDAL, PIN-683 501. ADV. SRI.M.NARENDRA KUMAR SRI.P.B.PRADEEP THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No.147 OF 2011 =========================== Dated this the 1st day of August,2011 JUDGMENT Plaintiffs in O.S.340/2007 on the file of Munsiff Court, North Paravur are the appellants. Defendant is the respondent. Second appellant is the husband and first appellant his wife. Plaint A schedule property having an extent of 1 Acre 12.275 cents and plaint B schedule property is having an extent of 46.544 cents. First appellant claimed title to the plaint A schedule property under Ext.A1 and the second appellant claims title to the plaint B schedule property under Ext.A2. Appellants contended that plaint C schedule way lies to the east of plaint A and B schedule properties and it is having an extent of 4.536 cents and it is the only pathway available to the plaint A and B schedule properties and RSA 147/2011 2 except the appellants nobodyelse is using the plaint C schedule way and plaint C schedule way is provided to the appellants in the prior title deed and respondent Panchayat has no right over plaint C schedule pathway. During the year 2006 respondent forcibly encroached into plaint C schedule pathway and stored materials for putting up a public road. A complaint was preferred by the appellants before the Panchayat and appellants have never given any consent to the Panchayat to construct any road through plaint C schedule pathway and on the western and southern side of the property there are compound walls and there is no gate on the southern side of plaint C schedule way and appellants intend to put up a gate on the southern side of the plaint C schedule way. Respondent Panchayat issued a show cause notice claiming that the way belongs to the Panchayat. In such circumstances appellants sought a decree for declaration and injunction. The declaration sought for is that appellants are owners of the plaint C schedule way and respondent RSA 147/2011 3 has no right over the same. Respondent resisted the suit contending that plaint C schedule way is not a private way as claimed and plaint C schedule way is not provided to the appellants alone under the partition deed 2312/1968 and it is a way being used by the general public for the last 40 years and it is a pucca tarred road which was metalled and tarred by the respondent Panchayat and appellants are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 to 4, DW1, Exts.A1 to A8, B1 to B3 and C1, C1(a) dismissed the suit holding that appellants did not establish that they have title to the plaint C schedule way and Exts.A1 and A2 establish that plaint C schedule way does not form part of plaint A and B schedule properties and in any case the suit without issuing a notice as provided under section 249(1) of Kerala Panchayat Raj Act, suit is not maintainable. Appellants challenged the judgment before Additional District Court, North RSA 147/2011 4 Paravur in A.S.157/2009. Learned Additional District Judge on reappreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. The argument of the learned counsel is that the courts below did not properly appreciate the evidence on record and Exts.A1 and A2 establish that plaint C schedule way exists and it is a way available only to the appellants and as there is no evidence to prove that it was ever surrendered to the Panchayat or dedicated to the public, a decree should have been granted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. Appellants sought the decree contending that plaint C schedule way exclusively belongs to them and the respondent has no right over it. The RSA 147/2011 5 declaration sought for is their excluding right and title to the plaint C schedule way. Appellants could claim title to the property only if plaint C schedule way forms part of the properties obtained under Exts.A1 and A2. Even according to the appellants, the property covered under Ext.A1 is the plaint A schedule property and the property covered under Ext.A2 is the plaint B schedule property. There is no case that plaint C schedule way forms part of either plaint A schedule property or plaint B schedule property. On the other hand, it is the specific pleading in the plaint C schedule property lies to the east of both the plaint A and B schedule properties making it absolutely clear that plaint C schedule way does not form part of the property covered under Exts.A1 and A2. Exts.A1 and A2 establish that plaint C schedule property is actually outside the properties covered thereunder. In such circumstances, appellants cannot claim title to plaint A schedule property. As no substantial RSA 147/2011 6 question of law is involved in the appeal, appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006