IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 26TH AUGUST 2009 /4TH BHADRA 1931 RSA.No. 933 of 2005() --------------------- AS.153/2000 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.51/1999 of SUB COURT, NEDUMANGAD .................... : APPELLANT ----------------------------- MOSA YOVEL JAPANANDA BHAVAN, IRAYAMCODE, CHERIYAKONNI, PERUMKULAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.MOSA YOVEL (PARTY-IN-PERSON) RESPONDENT(S): --------------- 1. RAGHAVAN NAIR, MEKKIZHAKKE PUTHENVEEDU, CHANICHAL, ERAYAMCODE, CHERIYAKONNI, KADAMBANATTU MURI, PERUMKULAM VILLAGE. 2. GOPALAN NADAR, S/O.CHINNAN NADAR, KRIPALAYAM, THEKKUMKARA, IRIYAMCODE, CHERIYAKONNI, KADAMBANATTU MURI, PERUMKULAM VILLAGE. 3. ARUVIKKARA PANCHAYAT REPRESENTED BY ITS EXECUTIVE OFFICER (SECRETARY). 4. KERALA STATE REPRESENTED BY R.D.O., THIRUVANANTHAPURAM. ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR FOR R3 SRI.PIRAPPANCODE V.S.SUDHIR FOR R3 ADDL.DIRECTOR GENERAL OF PROSECUTION FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2009, ALONG WITH RSA NO. 934 OF 2005 THE COURT ON 26/08/2009 PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.Nos. 933 & 934 of 2005 ---------------------------------------- Dated this the 26th day of August, 2009 JUDGMENT A.S. Nos. 151, 152 and 153 of 2000 on the file of the III Additional District Court, Thiruvananthapuram are filed by Mosa Yovel (the party in person appeared and argued the Second Appeals) which arises from O.S. No.241 of 1996, O.S No 242 of 1996 and O.S. No. 51 of 1999 respectively on the files of the Sub court ,Nedumangad . All the suits are jointly tried by the trial court. The said Mosa Yovel is the 3rd defendant in O.S. No. 51/1999, plaintiff in O.S. No. 241/1996 and the 1st defendant in O.S No. 242/1996. O.S. No. 241/1996 is filed by the said Mosa Yovel against the Aruvikara Panchayahth, and another. O.S. No. 242/1996 is filed by One Francis and another against Mosa Yovel and 5 others and O.S. No. 51/1999 is filed by one Raghavan Nair and another against Aruvikara Panchayath and 2 others. The trial court decreed O.S. No. 242/1996 and O.S. No. 51/1999 and dismissed O.S. No. 241/1996. The Second appeals are filed against the judgment in A.S Nos. 152 and 153 of 2000 on the file of III Additional District Court, Thiruvananthapuram which arises from the judgment and decree in O.S. No. 242 of 1996 and O.S. No. 51 of 1999 respectively on the file of the Subcourt, Nedumangad. Since the findings of O.S. No. 242 of 1996 and O.S. No. 51/1999 are challenged by Sri.Mosa yovel before the lower appellate court and this Court, I am dealing only R.S.A Nos. 933 & 934 of 2005 -2- with the findings in those suits . 2. O.S. No. 51/1999 was originally a suit for injunction to restrain the defendants from closing down the plaint schedule pathway, from disturbing the use of the pathway by the public including the plaintiffs and from assigning the pathway to the 3rd defendant (Mosa yovel). The suit was later amended as one for declaration of the right of the public over the pathway. The plaintiffs alleged that the plaint schedule road was being used by the public including the plaintiffs to reach Vellaikadavu- Puliyarakonam road. Defendants 1 and 2, the Aruvikara Panchayahth and the Revenue Divisional officer are taking steps to assign a portion of the above road having an extent of 9 Cents to the 3rd defendant. If that portion of the road is assigned to the 3rd defendant it would affect the right of the public to use the road. Defendants 1 and 2 have no right to assign any portion of the road to the 3rd defendant (Mosa Yovel). The members of the public have got right to use the plaint schedule public road. Hence the suit. 3. Sri.Mosa Yovel alone contested the suit. He admitted that the plaint schedule road, runs in between the properties was being used by the public including himself. He contended that it was a narrow road and not useful to the public. On either side of the road, he and his wife own an extent of one acre and six cents of land. There was attempt to widen the road having an area of 9 Cents by trespassing into a portion of the property of Mosa Yovel. Then he filed O.S. No. 144/1976. He has filed R.S.A Nos. 933 & 934 of 2005 -3- application before defendants 1 and 2 requesting to assign the 9 cents of property now lying as road and agreeing to provide another wider pathway through the northern side of the property instead of the existing portion of the road. The Tahsildar decided to assign the plaint schedule extent of 9 Cents to Mosa Yovel. The Panchayat had taken decision to that effect on 4.6.1984. On the basis of the said decision, Mosa yovel has provided another pathway at a width of 15 feet through the northern side. The extent was surrendered to the Panchayat. Mosa yovel contended that the defendants have not done anything against the interests of the public. The plaintiffs have no right to use the the plaint schedule road and they are not entitled to any relief. 4. O.S. No. 241/1996 is filed by Sri.Mosa Yovel praying to restrain the defendants from trespassing into the plaint schedule property and from widening the plaint B schedlule road which is having a width of 16 links belonging to the Aruvikara Panchayat running through the plaint A schedule property. 5. O.S. No. 242/1996 was filed by one Francis and another as plaintiffs for a decree of permanent injunction to restrain the defendants in the suit from closing down the plaint B schedule pathway and from interfering with the use of the pathway. It was alleged that the plaint B schedule is a public road that belonged to the 6th defendant Panchayat and that way existed for the last 70 years. The plaintiffs in the said suit were using the plaint B schedule pathway for the last 70 years, in R.S.A Nos. 933 & 934 of 2005 -4- continuation of the use by their predecessors-in-interest and that the 1st and 2nd defendants(Mosa Yovel and his wife) are not entitled to make any alteration to the plaint B schedule road. 6. The defendants 1 and 2 (Sri.Mosa Yovel and his wife) contended that the suit was filed at the instance of the 2nd Defendant in O.S No. 51/1999(R.D.O, Thiruvananthapuram). The description of the plaint B schedule is not correct. It is incorrect to say that the road is in existence for the last 70 years. The plaintiffs are not using the plaint B Schedule road. There is only a 10 feet wide pathway through the middle of their property, that when one Gopalan Nadar attempted to widen the pathway the said Mosa Yovel filed O.S. No. 144/1976, The Panchayat and the Government have decided to assign the plaint B Schedule portion of the road in lieu of the alternative pathway provided by Mosa yovel. The plaint B schedule way is to be closed down and the alternative road is to be used. They contended that the plaintiffs in the said suit are not entitled to any reliefs. 7. The defendants 3 to 5 in their joint written statement contended that the earlier decision to assign the plaint B schedule portion of the road was reconsidered and cancelled as it was not convenient to the public. According to them there was no attempt to trespass as alleged in the plaint. 8. The 6th defendant, Aruvikara Panchayat also maintained that the earlier decision to assign the plaint B Schedule way was cancelled as R.S.A Nos. 933 & 934 of 2005 -5- per the decision dated 3.5.1988.and that there is no obstruction to the use of plaint B Schedule pathway. 9. O.S. No. 51/`1999 was taken as the leading case. So the witnesses were examined and Exhibits were marked in that suit. On the side of the plaintiffs 3 witnesses were examined as PWs 1 to 3 and Exts.A1 to A12 were marked. On the side of the defendants(Aruvikara Panchayat, Kerala State, and Mosa Yovel) no witnesses were examined but Exts. B1 to B5 were marked. The reports and plans submitted by the Commissioners who conducted local inspection were marked as Exts.C1 to C3(a) 10. The disputed portion of the pathway is the plaint Schedule pathway in all the suits. . According to Mosa Yovel the plaint schedule pathway is passing through his property and the property of his wife, which divides the property belonging to them into two which is causing him considerable hardship. Therefore he appealed to the Panchayat to assign the disputed portion of the plaint schedule pathway in his favour. He also moved the Government to get the above portion assigned in lieu of the portion to be surrendered and converted as road. The Panchayat resolved to accept the request of Mosa Yovel on 4.6.1984 . On the basis of the said resolution Mosa Yovel provided another pathway at a width of 15 feet through the northern side and the same was surrendered to the Panchayat. . At that time the plaintiffs in O.S. No. 51/1999 came forward with the suit to restrain Mosa Yovel from closing down the pathway . R.S.A Nos. 933 & 934 of 2005 -6- Therefore the Panchayath and the State of Kerala were constrained to refrain from assigning the disputed portion. O.S. 51/1999 was decreed as prayed for. This Court in the first round Second appeal remanded the matter. Thereafter the said suit was amended incorporating the prayer for declaration. In the meanwhile accepting the public demand the Aruvikara Panchayat cancelled their earlier decision to assign the disputed portion of the pathway to Sri.Mosa Yovel . The Revenue Divisional Officer also withdrew his order in that respect. 11. The plaintiffs in O.S. No. 242/1996 also contended that the plaint schedule pathway is a public road that belonged to the Panchayat That way existed for the last 70 years. The plaintiffs in that suit were using the plaint B schedule way for the last 70 years, in continuation of the use of their Predecessors-in-interest. Defendants are not entitled to make any alteration to the plaint B Schedule pathway. On 3.11.1983 the defendants 1 and 2 attempted to obstruct the plaint B schedule pathway and they have no right to do so. The stand of the plaintiffs in O.S No. 242/1996, also compelled the Panchayat and the R.D.O, Thiruvananthapuram, to revoke their earlier decision to assign the disputed portion of the plaint schedule pathway as it was not convenient to the public. 12. The Suits filed as O.S.Nos. 585/1994(renumbered as O.S. 51/1999) and O.S. No. 711/1993(re-numbered as O.S. 242/1996) were filed before the Munsiff's Court, Nedumangad, and O.S. No. 1605/1992 (renumbered as O.S. 241/1996) before the Sub court, Thiruvananthapuram R.S.A Nos. 933 & 934 of 2005 -7- All the suits are renumbered and tried jointly by the Sub Court Nedumangad to facilitate joint trial as common questions arose for decision. 13. Admittedly the disputed pathway vested with the Panchayat, is running in between the properties of Mosa Yovel and his wife and the general public and the plaintiffs in O.S. Nos. 242/1996 and 51/1999 are using the same. Ext.C1 to C3 reports and the plans attached to it, will show the existence of pathway and its width is 16 to 25 links. Commissioners have also reported that the local people are using the disputed pathway for access and also for taking vehicles. Going by Ext.C2 plan the plaint schedule pathway divides the properties of Mosa Yovel and his wife into two plots. The lower appellate court on evidence found that the portion of the road beyond the property of the said Mosa Yolvel on either side is already widened. The lower appellate court also held that the allegation that the disputed portion of the road was also attempted to be forcibly widened cannot be brushed aside. The Commissioner's reports shows that the disputed portion is narrower when compared to the portion of the road beyond the property of MosaYovel on either side. According to the Commissioner who filed Ext.C1 report, the width of the disputed portion of the road is not uniform and is 16 links in the middle, 25 links and 20 links on either end. The Commissioner in Ext.C3 reported that the disputed portion of the road is at a width of 3.5 metres at the western and eastern extremities. On either side beyond the R.S.A Nos. 933 & 934 of 2005 -8- property of Sri.Mosa Yovel, the road is wider. It is held that the general public , the Panchayat or the Government have no right to widen the disputed portion of the road, without the consent of the Mosa Yovel or without acquiring his property for the purpose in accordance with law 14. The party in person Mosa yovel submitted before this court that the existence of the disputed road dividing his property into two is causing considerable hardship to him. He also graciously offered to give the alternate way on the immediate northern side of the present road touching his northern boundary having more width only for the reason that he can enjoy his property more conveniently as one compact plot. I am of the view that If his proposal is accepted , the public will not face any difficulty in using the alternate road, at the same time Mosa Yovel can enjoy his property as one single plot. In fact the Panchayath and R.D.O originaly have accepted the Mosa Yovel's request and agreed for changing the course of the disputed road which in turn will redress Mosa Yovel's grievances. But they had not done so, due to the protest of the general public. It is open to the Panchyat , Government, R.D.O and other authorities concerned as the case may be to consider the application if any filed by the said Mosa Yovel on humanitarian grounds. Mosa Yovel is at liberty to move the appropriate Forum for seeking appropriate reliefs in this regard. 15. Mosa yovel produced the copy of the communication No. F.11900/1983, dated 25.6.1984 issued by the Sub Collector, Trivandrum to R.S.A Nos. 933 & 934 of 2005 -9- the Tahsildar Nedumangad. It is stated therein that Mosa Yovel can construct the road as suggested by him on condition that the width should not be less than the present width of the existing road, that after constructing the above road he should furnish a letter from the Panchayat stating that the new road is to their entire satisfaction and that only after that, permission can be given to him to close the existing road and to assign it to him. He also produced the Panchayat's resolution dated 30.8.1984 permitting Mosa Yovel to open the new road . 16. The counsel for the respondents submitted that the Church of South India, South Kerala Diocese, represented by the Bishop strongly opposed the move for changing the course of the present road and resisted the attempt for the formation of the new road. The Bishop intimated the R.D.O. that the existing road is in the Government Poramboke that if the new road is constructed it will be of no use or benefit to the public and to the institutions situated in the locality. it is clear that the revised orders passed by the Panchayat and the R.D.O. are on the basis of the influence exerted by the Church Authorities . The counsel for the respondents also produced the above said representation, the copies of the judgments of this Court dated 9.9.1993 in O.P. No. 16874 of 1993and in W.A. 2366 of 1999,dated 31.5.2000. I have discussed the respective contentions of the parties and the evidence tendered by them. Though consents were given for changing R.S.A Nos. 933 & 934 of 2005 -10- the course of the disputed road by the Panchayath and the R.D.O, they withdrew their consent due to strong opposition from the Public. It is clear in law that for changing the course of an existing road , approval from the Panchayat and the Government is necessary According the learned District Judge , so long as no such approval is in force, members of the public have every right to use the disputed portion for their passage. Unfortunately the authorities had not given the said approval. In the circumstances there is no other option for me other than to concur with the lower appellate court's judgment in all the first appeals The Party-in- Person, Mosa Yovel , in both the Second Appeals has not made out any grounds to invoke this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in these Second Appeals. These Second Appeals fails and dismissed without prejudice to Mosa Yovel to approach the authorities as observed in paragraph 14 of this judgment. No order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A Nos. 933 & 934 of 2005 ---------------------------- JUDGMENT 2009