IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 RSA.No. 695 of 2011() --------------------- AS.56/2004 of SUB COURT, OTTAPPALAM OS.43/2000 of MUNI-MAGI.COURT,PATTAMBI .................... APPELLANTS/ APPELLANTS/ PLAINTIFFS : ------------------------------ 1. MOHANADASAN, AGED 51, S/O. KANHULLI ELLATAVILAPPIL LAKSHMIKUTTY, CHAZHIYATTIRI AMSOM AND DESOM OTTAPALAM TALUK. 2. SOMASUNDARAN, AGED 48, S/O. KAHNHILLI ELLATAVILAPPIL KASHMIKUTTY, CHAZHIYATTIRI AMSOM AND DESOM OTTAPALAM TALUK. BY ADV. SRI.THIYYANNOOR RAMAKRISHNAN SRI.P.ARUNKUMAR SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): RESPONDENTS/ DEFENDANTS : ------------------------------------------------------- 1. AMMINI AMMA, AGED 76, D/O. CHERULI MELUTTU AMMALU AMMA, CHAZHIYATTIRI AMSOM AND DESOM, OTTAPALAM TALUK - 679 101. 2. SANTHAKUMARI, AGED 57, D/O. CHERULI AMMINI AMMA,(R1) CHAZHIYATTIRI AMSOM AND DESOM, OTTAPALAM TALUK - 679 101. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.695 OF 2011 --------------------------------------------- Dated 19th July, 2011 JUDGMENT Plaintiffs in O.S.43/2000 on the file of Munsiff-Magistrate Court, Pattambi filed this appeal challenging the concurrent decree of the courts below. Appellants instituted the suit seeking a decree for permanent prohibitory injunction restraining the respondents from causing obstruction to plaint B schedule way alleging that plaint B schedule property lies to the north of plaint A schedule property and it is a public way and the respondents are not entitled to cause any obstruction to the way. Respondents denied the existence of the way and contended that no public way exists to the south of their property. Learned Munsiff on the evidence of RSA 695/11 2 Pws.1 and 2, Dws.1 and 2 and Commissioner as CW.1 and Exts.A1 and C1 to C4 dismissed the suit holding that appellants did not succeed in establishing that a way exists towards the north of the plaint A schedule property as described in the plaint B schedule. Learned Sub Judge in A.S.56/2004 confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for the appellants was heard. 3. Argument of the learned counsel is that the northern boundary of Ext.A1 shows that it is a lane and though the respondents suppressed their title deed their southern boundary is also the lane and Ext.C1 report of the Commissioner shows that when copy of the title deed of the respondents was made RSA 695/11 3 available, it shows that southern boundary is a lane and in such circumstances, courts below were not justified in dismissing the suit. Learned counsel would argue that evidence of DW1 establishes that cattle used to be taken through the northern boundary of the plaint A schedule property and the Commissioner could also note part of the way though noted the plaint B schedule way and in such circumstances, it should have been found that a public way exists in between the property of the appellants and the respondents and respondents are not entitled to cause any obstruction to that way. Learned counsel also argued that though an application was filed before the First Appellate Court to appoint a survey commission to fix the way with an application to receive the report to be filed RSA 695/11 4 as additional evidence, that was dismissed by the First Appellate Court and on the evidence, the appellants are entitled to the decree prayed for. 4. On hearing the learned counsel, I do not find any substantial of law involved in the appeal. Copy of Ext.A1, which was made available by the learned counsel establishes that southern, western and northern boundaries shown is lane (edavazhi). Ext.C1 report with the evidence of CW.1, the Commissioner establish that the Commissioner could not note a way described as plaint B schedule on the northern boundary at the time of inspection. If there existed a public way as claimed by the appellants, starting from western lane, the way should proceed further towards the east through Pallial property of Gopi Nair noted in Ext.C2 RSA 695/11 5 plan. Commissioner could not note existence of any such way. There cannot be a public lane, unless it connects to another public lane or public property even if it starts from the western road as claimed. When the appellants are admittedly having panchayat road on the west and a road on the south, appellants need not have a way beyond their northern boundary. Evidence would establish that the way now claimed by the appellants, forms part of the property in the possession of the respondents. If the case of the appellants is that there exists a public way, they should have adduced evidence to prove that there exists a public way. The only way for a plaintiff to establish the public way is to prove its origin in custom. In order to prove the public way, plaintiff has to prove a custom recognising RSA 695/11 6 the right in public or a dedication of the land for using it as a way. There is no evidence to prove that the existence of the public way being used by the public. In such circumstances, courts below were justified in holding that appellants are not entitled to a decree for injunction sought for. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.