IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 RSA.No. 855 of 2006 --------------------------------- AS.70/1998 of PRL.SUB COURT,TRIVANDRUM OS.1100/1995 of III ADDL.M.C.,TRIVANDRUM .................... APPELLANT/2ND RESPONDENT/2ND PLAINTIFF: K.VELAYUDHAN NAIR, S/O.KESAVA PILLAI, RESIDING AT MEENAKSHI BHAVAN, HOUSE NO.VI/370, NEERAMANKARA, THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN SRI.M.R.SASITH RESPONDENTS/APPELLANTS & R1 & R3 TO 6/ DEFENDANTS & PLAINTIFFS 1 & 3 TO 6: 1. PRINCIPAL, N.S.S. WOMEN'S COLLEGE, NEERAMANKARA, THIRUVANANTHAPURAM. 2. NAIR SERVICE SOCIETY, REP. BY ITS GENERAL SECRETARY, N.S.S.HEAD QUARTERS, PERUNNA, CHANGANACHERRY. 3. K.SIVADASAN, (DIED), S/O.KESAVAN, THE PRESIDENT, SIVA NAGAR ASSOCIATION, REGD. NO. 707/92, NEERAMANKARA, THIRUVANANTHAPURAM. 4. SUBHADRA, KARTHIKA, NEERAMANKARA, KAIMANAM.P.O. 5. S.ANITHA, KARTHIKA, NEERAMANKARA, KAIMANAM.P.O. 6. S.ANILKUMAR, KARTHIKA, NEERAMANKARA, KAIMANAM.P.O. 7. S.AJITHA, KARTHIKA, NEERAMANKARA, KAIMANAM.P.O. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 855 of 2006 --------------------------- JUDGMENT The second plaintiff in O.S.No.1100/95 on the file of the Munsiff's Court, Thiruvananthapuram is the appellant. He, along with late first plaintiff Sivadasan, filed the said suit against the respondents for a decree of permanent prohibitory injunction restraining them from causing any obstruction to the public pathway that lies through the premises of N.S.S. Women's College, Neeramankara, inter alia, on the allegations that the first plaintiff is the President of Siva Nagar Association with Reg.No.707/92 at Neeramankara; that the Association was formed by the residents of the housing colony for the welfare of the members of the Association as well as for the people residing nearby; that the housing colony is located near Neeramankara on the side of the public tar road starting from Thiruvananthapuram-Kanyakumari National Highway; that on either side of the road RSA 855/06 2 there are many residential houses, temples, shops, N.S.S.Women's College and N.S.S.School; that the second plaintiff is the resident of the locality, who is residing in House No.N.P.6/370; that access to his house is through the pathway leading from the said tar road, which is there from time immemorial; that the plaint schedule property is a public tar road having a width of 25-35 feet starting from T.V.S. Workshop Junction on the National Highway and proceeding south wards; that the plaint schedule public road is in existence from time immemorial for the last more than hundred years and it was brought under the Nemom Panchayat and is maintained by the Panchayat; that it is used by public at large, including the plaintiffs; that recently, Principal of N.S.S.College, Neeramankara, who is the first defendant under the instigation and direction of the second defendant, in whom, the management of the College and School are vested, is causing obstruction in the plaint schedule public RSA 855/06 3 road; that the defendants made attempt to obstruct the D-F pathway leading from the plaint schedule road to the residence of the second plaintiff; that he filed O.S.No.1984/92 before the Munsiff's Court and the suit was decreed on 19.7.1994 declaring the easement of the second plaintiff over D-F pathway; that the defendants, who do not even have any right or title over the plaint schedule property, have wrongly and illegally attempted to construct cross walls on the public road with the intention of obstructing the use of the plaint scheduled road by the plaintiffs and the people of the locality; that the act of the defendants are in violation of the judgment and decree passed in O.S.No.1984/92; that on 30.9.1995, the defendants illegally attempted to raise barbed wire fencing across the public road at points X-Y, marked in the sketch and thereby attempted to cause obstruction to the plaintiffs as well as to the public from using the said road, but due to the timely intervention of the people of the RSA 855/06 4 locality, the defendants could not succeed in their attempt; that thereafter on 4.10.1995, the defendants again made an attempt to construct granite wall across the road at points X-Y; that, that attempt was also thwarted by the timely intervention of the people of the locality, who staged a dharna in protest; that it is reliably learnt that without considering the legal rights of the people of the locality the defendants are making secret preparations to construct cross walls on the plaint scheduled road at points X-Y marked in the sketch by influencing certain officials at their command; that unless the defendants are restrained by an order of the court, the plaintiffs as well as the people at large would be put to irreparable loss and injury and hence the suit for getting a decree of permanent prohibitory injunction restraining the defendants from causing obstruction to the scheduled public road and from raising any fencing and constructing any wall or RSA 855/06 5 structure at points X-Y or across the plaint schedule public road and also from making any obstruction to the pathway marked as D-F in the sketch. 2. The defendants resisted the suit by filing written statement raising the following contentions: It is true that there is a housing colony by name Siva Nagar at Neeramankara. The N.S.S.Women's College and Mannam Memorial Residential School are situated in thirty one acres of land, lying on the southern side of the Thiruvananthapuram-Kanyakumari National Highway. The road made mention of in the plaint is not a public road. The property in possession of N.S.S. was leased out to the second defendant society by the Government for the establishment of the Educational Institution. The State of Kerala is a necessary party to the suit. After the lease in favour of the second defendant, the property was developed by the second defendant RSA 855/06 6 using their own funds and constructed a new road initially up to the College and later southwards up to the school. The said road is a private road, developed and managed by the second defendant Society. The said road was laid to provide suitable access to the College and to the School. The sketch produced along with the plaint is self serving. There is no pathway in existence from the tar road to the house of the plaintiffs from time immemorial as alleged. The road itself was formed and came into existence only recently. The road marked A-B-C is not a public road nor was it maintained by the Panchayat. It was not in existence for the last hundred years nor was it being used by the plaintiffs during the said period. The compound of the College and the school had to be enclosed, as there was harassment of students and theft of usufructs from the property of the defendants. The Nemom Panchayat directed the N.S.S. to make provisions for two link roads on the southern side RSA 855/06 7 of the compound. One of the said link roads was to link the private pathway with Sankar Nagar-Karamana Road. It was agreed by the N.S.S. earlier in 1993 and the N.S.S. purchased land to provide necessary extension for the Sankar Nagar road to extend the road to south of the College compound. On the basis of the agreement entered into between the Nemom Panchayat and the N.S.S. on 31.10.1989, the defendants have every right to put up compound wall to protect their property. In view of the decree in O.S.No.1984/92, the present suit is barred by Order II Rule 2 of the Code of Civil Procedure. The plaintiffs have no legal right to seek for injunction on the lines prayed for. The plaintiffs are not entitled to any of the reliefs and the suit deserves only to be dismissed with costs. 3. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DW1 and RSA 855/06 8 documentary evidence Exhibits A1 to A3 and B1 to B3 decreed the suit. Defendants 1 and 2 assailed the said judgment and decree before the first appellate court by filing A.S.No.70/98. During the pendency of the said appeal, the first plaintiff passed way and his legal representatives are impleaded as additional respondents 3 to 6. The first appellate court considered the case on merits and dismissed the suit allowing the appeal. Hence this Regular Second Appeal at the instance of the second plaintiff. 4. The respondents herein are defendants 1 and 2 in the suit and the legal representatives of deceased first plaintiff, who are impleaded as respondents 4 to 7 and the deceased first plaintiff himself is arraigned as the third respondent in the appeal. 5. Going by the averments in the plaint, for grant of relief in relation to an alleged public road, which runs, admittedly, through the premises RSA 855/06 9 of the N.S.S.Women's College, Neeramankara, managed by the second respondent and the Principal of which is the first respondent, despite the specific allegation that relief is asked for in relation to a public road, it is not filed as a representative suit on behalf of the public and the only surviving plaintiff is the second plaintiff. In the suit filed otherwise than under Order I Rule 8 of the CPC, the rights of the public over the alleged public pathway cannot be determined, as any determination in such a suit is not to bind the members of the public and similar suits can be instituted by several persons for the same relief. Counsel for the appellant is unable to explain as to how in relation to a public road, the suit now prosecuted by the second plaintiff alone and that too not in a representative capacity, is maintainable. Counsel for the appellant was also not able to canvass for the contention that any substantial question of law arises for RSA 855/06 10 consideration by this Court in this Regular Second Appeal. The substantial questions of law attempted to be formulated in the appeal memorandum are not substantial questions of law and they do not in fact arise for consideration in this Regular Second Appeal. Consequently, there is no merit in this Regular Second Appeal and it deserves only to be dismissed. In the result, I dismiss this Regular Second Appeal in limine, refusing admission. 30th June, 2008 (K.P.Balachandran, Judge) tkv