IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 RSA.No. 1043 of 2010() ---------------------- AS.211/2007 of ADDL.DISTRICT COURT, KOTTAYAM OS.406/2003 of ADDL.MUNSIFF COURT, KOTTAYAM .................... APPELLANTS/APPELLANTS 1 TO 3/DEFENDANTS 1 TO 3: ------------------------------------------------------- 1. PADMANABHA PILLAI, S/O.NEELAKANDA PILLAI VALAVALLIL(SRUTHY),KUMMANAM KARA, AYMANAM,KOTTAYAM 2. PRASANNAKUMAR, S/O.KRISHNAN, VALAVALLIL(SRUTHY),KUMMANAM KARA, AYMANAM,KOTTAYAM 3. PRATHAPAN, S/O.PARAMESWARAN, VALAVALLIL(SRUTHY),KUMMANAM KARA, AYMANAM,KOTTAYAM BY ADV. SRI.ALEX.M.SCARIA RESPONDENT(S)/RESPONDENT/PLAINTIFFS 1 TO 3 & DEFENDANTS 4 TO 9: ---------------------------------------------- 1. KUMMANAM ELANKAVU DEVASWOM BHARANA SAMITHY, REPRESENTED BY ITS PRESIDENT, UTHAMAN, S/O.DAMODARA PANICKER, KOUSTHABHAM, KUMMANAM P.O., KOTTAYAM. 686 035 2. SECRETARY,PURUSHOTHAMAN, UTHRAM HOUSE, MARIYATHURUTHU P.O., KOTTAYAM. 686 027. 3. KUMMANAM ELANKAVU DEVASWOM REPRESENTED BY ITS SECRETARY. 686 027 4. R.GOPALAKRISHNA PILLAI, PARVATHI MANDIRAM, KUMMANAM P.O., KOTTAYAM. 686 035 5. V.R.KUNJUKRISHNA PILLAI, VALAVATHIL HOUSE, AYAMANAM P.O., KOTTAYAM. 686 015 6. MOHANAN NAIR, S/O.VASUPILLAI, VALAVATHIL HOUSE, AYAMANAM P.O., KOTTAYAM. 7. PRATHAPA DAS @ MANU, S/O.MOHANAN NAIR, VALAVATHIL HOUSE, AYAMANAM P.O.KOTTAYAM. R.S.A.NO.1043/2010 8. ELANKAVU THACHIL THARA KOLOTHU MALIL ROAD ACTION COUNCIL REPRESENTED BY ITS PRESIDENT, THOMAS KURIAN, KOLATHU MALLIL HOUSE OF DO. 9. SURENDRAN K.N., MUNDAPUZHA MALIYIL HOUSE KUMMANAM KARA OF DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1043 OF 2010 (G) ----------------------------------- Dated this the 22nd day of September, 2010 J U D G M E N T The appellants are the defendants 1 to 3 in O.S.No.406 of 2003 on the file of the Additional Munsiff Court, Kottayam. Suit was one for perpetual prohibitory injunction. Plaintiffs in the above suit are respondents 1 and 2, a Devaswom and its Secretary. 2. The dispute involved in the suit related to the question whether any part of the kshethra maithanam is being used by the defendants as of right as a motorable road for access to their residential buildings situate on the southern side of that maithanam. Plaintiffs laid the suit alleging that the defendants had unauthorisedly constructed ramps in the maithanam adjoining to their residential compounds and also dumped soil over the southern extremity of the kshethra maithanam so as to reduce that portion of the maithanam to use it as a road in RSA.NO.1043/2010 2 continuation of a lane commencing from a public road situate on the eastern side of the temple property. According to the plaintiffs, there is a lane from that public road through the southern extremity of the maithanam and the northern side of a Government school compound. That lane terminate at the point where it enters into the maithanam at the north western corner of the school compound and there is no further continuation of that pathway through the temple maithanam, was the case of the plaintiffs. But the defendants contended that through out the southern extremity of the kshethra maithanam upto the 'Govany Palam' on its west, there is a pathway dedicated to the public, which has an extent of 7 feet. The materials tendered in the case which included a survey sketch prepared over the property, revenue records and title deeds, supported the case of the plaintiffs that there is no continuation of the pathway through the southern extremity of the kshethra maithanam. Pathway commencing from the public road, as contended by the plaintiff, it was shown, terminated at the north western corner of the school compound. The trial court thereupon concluded that the RSA.NO.1043/2010 3 claim of continuation of the pathway by the defendants beside their residential compounds is bereft of any merit. It was also found that the defendants have unauthorisedly constructed ramps and also dumped soil in the kshethra maithanam. Exts.C2 report and C2 (a) plan prepared by the Advocate Commissioner, which have material value in resolving the disputed question covered by the suit remained unimpeached on any count by the defendants. The trial court accepting that report and plan and also the materials tendered by the plaintiffs, granted a decree as prayed for by the plaintiffs, by which, the defendants were directed to remove the ramps put up in the kshethra maithanam, which were marked and shown in Ext.C2 (a) plan, and also a perpetual prohibitory injunction restraining them from committing any sort of waste in the kshethra maithanam. Challenge raised against the decision of the trial court by defendants 1 to 5 by way of an appeal was turned down by the lower appellate court concurring with the findings entered by the trial court and upholding the decree of injunction, both prohibitory and mandatory, after re-appreciating the RSA.NO.1043/2010 4 materials tendered in the case. Concurrent decision so rendered is challenged in this appeal. 3. I heard the counsel for the appellants. It was contended by the learned counsel appearing for the appellants that conflicting findings have been entered by the courts below with respect to the existence of the pathway through the southern extremity of the kshethra maithanam, which was the disputed matter covered by the suit. After going through the judgments of the trial court and also the lower appellate court, I find that not only that there is no conflicting finding but both the courts have reached a conclusion on the materials produced that the defense canvassed by the defendants as to the existence of a public way through the southern extremity of the kshethra maithanam in continuation of the lane starting from the public road on its east upto the south west extremity of the school compound, which alone was admitted to by the plaintiffs, is totally unfounded and no such pathway existed. The case of the defendants as seen from their contentions raised in opposition to RSA.NO.1043/2010 5 the suit claims was that a public way existed beside their property on its north and only beyond that public road, the temple has property. No material whatsoever was produced by the defendants to show that any of the defendants as of right or as members of the public were ever in enjoyment of any such right as contended over any portion in the kshethra maithanam to the north of their residential compounds. On the contrary, the materials tendered in the case disclosed that the temple property (kshethra maithanam) on its south extended upto the northern boundary of the registered holdings of these defendants. The report of the Commissioner disclosed that the defendants have put up ramps in the property of the temple, kshethra maithanam, so as to take in motor vehicles through such ramps into their residential compounds. The defendants had also dumped soil through the southern extremities of the kshethra maithanam so as to use it as a motorable road in continuation of the existing lane which terminated at the north western corner of the school compound. Both courts have found that the above acts done by the defendants in the property of the temple (kshethra RSA.NO.1043/2010 6 maithanam) were unauthorised and liable to be removed. There is no error or any infirmity in the concurrent findings entered by the two courts below, and the decree granted in favour of the plaintiffs is unassailable. There is no merit in the appeal and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp RSA.NO.1043/2010 7