IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 FAO.No. 113 of 2006() --------------------- AS.8/2003 of SUB COURT, PALA OS.230/1996 of MUNSIFF COURT, PALA .................... APPELLANTS(S)/RESPONDENTS:2 & 3 DEFENDANTS 2 & 3 -------------------------- 1. JOHNEY, PANACHIKKAL THAZHATHU HOUSE, KOODALLUR KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK. 2. MOLY, W/O. JOHNY, DO. DO. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): APPELLANT & R4 TO 6 PLAINTIFF & DEFENDANTS 4 TO 6 -------------------------- 1. SKARIA CHACKO, S/O. CHACKO, KUREEKATTU HOUSE, KOODALOR KARA, KIDANGUR VILLAGE, MEENACHIL TALUK. 2. ABRAHAM JOHN, S/O. JOHN, PULIYANNOOR PARAMBIL, DO. DO. 3. V.V. DAMODARAN, S/O. VELAYUDHAN, VELLOPPALLIL, DO. DO. 4. KOODALLOOR ST.JOSEPHS CHURCH, REPRESENTED BY VIKARI, KOODALLOOR. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- F.A.O.No. 113 OF 2006 --------------------------------- Dated this the 8th day of January, 2009 JUDGMENT This appeal is preferred against the judgment of remand rendered by Subordinate Judge, Pala in A.S. 8/2003. A.S. 8/2003 had arisen out of the judgment and decree in O.S. 230/96 of the Munsiff Court, Pala. The trial court on a consideration of the entire materials had dismissed the suit for injunction and the counter claim for declaration. The appellate court by a very long judgment set aside that judgment and decree and remanded the case to the trial court for fresh disposal. It is against that order of remand the defendants 1 to 3 have come up in appeal. 2. The following substantial questions of law arise for consideration. 1. Is not the lower appellate court erred in remanding the matter to the trial court in the absence of essential ingredients to invoke the power of remand in terms of Order 41 Rule 23 & 23A of the Code of Civil Procedure 1908. 2. Is not the lower appellate court in serious error in omitting to take note of the fact the plaintiff and defendants 4 and 5 who F.A.O. 113/2006 -2- have claimed a right of public way have not even pleaded the absolutely essential ingredients, namely the dedication of property by persons with sufficient details? 3. Is not the lower appellate court in serious error in having interfered with the judgment of the trial court based on crucial admission by the independent witnesses on the material issue that too without any justifiable reasons. 3. Points 1 to 3: The suit is one for a mandatory injunction as well as for a permanent injunction. A perusal of the plaint would reveal that it is the case of the plaintiff that the way described in the plaint schedule is a public pathway which according to the plaintiff has been dedicated by the predecessor-in-interest of the plaintiff and defendants. Thereafter it has been continuously and as of right had been used by the predecessor-in- interest of the plaintiff as well as the defendants. Therefore it is a public pathway and the defendants are not entitled to block that passage or trespass into that passage and the plaintiff is also entitled to get an order of mandatory injunction to remove the stone wall constructed after trespassing into the pathway. On the other hand, the defendants F.A.O. 113/2006 -3- would contend that there is a clear demarcating wall on the eastern side of the plaintiff's property which separates plaintiff's property from the defendants' property. According to the defendants, in order to allow the water to flow, they have left a small portion of their property on their western extremity and in order to prevent soil erection during the period of tapioca cultivation etc. they have placed some stones and the property which is described as a pathway is not a pathway at all and it is a partition of the defendants' property. There has been no dedication much less no body using as a pathway and so the plaintiff is not entitled to get any reliefs over the property. The counter claim raised by defendants 4 and 5 runs parallel to the claim of the plaintiff which has also been objected by defendants 1 to 3. 4. In a suit of this nature, when right is claimed by dedication there must be evidence to establish the dedication of in order to crystalise that right. Under Easement Act a right of way can be acquired either by custom, dedication or the prescriptions made under the Easement Act. Here the plaintiff had preferred this case on the premises of a dedication by the predecessor- in -interest of the plaintiff as well as the defendants. If there had been a public F.A.O. 113/2006 -4- pathway as alleged by the plaintiff, the first expression we would have found would have been on the title deed of the plaintiff itself. Ext. A1 is the document of title with respect to the plaint schedule property claimed by the plaintiff. The eastern boundary of that property is shown as that of the defendants property. If really there had been a dedication of the property and that property was being used as a pathway, then the boundary should have been shown as a pathway in the document. The absence of the same in Ext. A1 speaks in volumes about the absence of such a pathway. Secondly when a right of way is claimed by way of a dedication, one is expected to give details regarding the persons who had dedicated, how long back it has been dedicated and how long it has been put into use as pathway. All dedications need not be by clear document. But whenever a person sets up a contention of dedication, there must be minimum prescribed materials available to infer the dedication. For that purpose it has to be established that the disputed pathway comprised the property of the plaintiff as well as the defendants. Otherwise there cannot be a dedication by the predecessor of the plaintiff and defendants together for the formation of a pathway. Here absolutely no evidence is tendered in F.A.O. 113/2006 -5- that regard. Nothing is spoken about the time or the persons who have dedicated and so it has to be held that the dedication is not established at all. 5. Now let me consider about the other materials available. According to the plaintiff one Pallikunnu road is situated on the northern side of the 5th defendant's property. It is contended that pathway proceeds from north to south and joints the Koodalloor- Aruthukuzhy road. The trial court has elaborately considered this matter and has found that in the property other than that is claimed in the suit there is a motorable way. Therefore the trial court correctly came to the conclusion that if the plaint schedule property been a dedicated property as a public pathway necessarily and naturally the said motorable road would have run further north from the place where it has stopped to take in plaint schedule also a public path way. The trial court found that the absence of such a way indicates that all is not true with the case of the plaintiff. 6. The plaintiff's solid contention before the court is that he is using this pathway for his ingress and egress. Evidence is available in plenty to show that there is a stone wall separating the plaintiff's property from this way which according to plaintiff has got a height F.A.O. 113/2006 -6- of 3 feet. But the witnesses DW2 would say that the plaintiff's eastern Kayyala is of 4 ½ to 5 feet height and that there is no passage for passing through that Kayyala to the plaintiff's property from the disputed edavazhi. This fact has been admitted by DW3 also. So the evidence of DW2 and DW3 who are supporting the case of the plaintiff would show that there is a stone wall separating the property with a height at least 4 feet and there is no step or gap through which one can enter the plaintiff's property from the disputed pathway. This also holds very much against the case of the plaintiff. So in a case of this nature, when materials are not available to prove the dedication and the usage of the pathway there is no point in directing the trial court to reconsider the matter again to prove the dedication. An order of remand shall not be one to fill up the lacuna of the plaintiff's case. In spite of all opportunities he did not adduce evidence to satisfy the conscience of the court regarding the existence of a pathway which according to him has been dedicated by the plaintiff and defendants. 7. The Commissioner who had visited the property had also found that the attempt of the defendant is to put up a stone wall in the line where the old stone wall is in existence or in other words F.A.O. 113/2006 -7- there has been no attempt at all by the defendants to tress pass into anybody elses property. When there is no evidence to show the plaint schedule property is a pathway as alleged and much less in evidence to show that it has been used as public pathway and that when it forms part and parcel of the defendants property it may not be justifiable for any authority to prevent the defendants from constructing a wall in the place of old wall that was in existence. I am also informed that there is no appeal filed against the dismissal of the counter claim. The abandoning of the case by the defendants 4 and 5 certainly cannot affect the right of the plaintiff if he has right. It can be seen that (1) There is no evidence to show that there was a pathway which has been dedicated by the plaintiff's predecessors and defendants predecessors (2) There is no evidence at all to show that at any point of time there was any entry from the plaintiffs property to the alleged pathway. (3) The materials available would only show that the defendants 1 to 3 has left out a small portion of their property for the purpose of flowing water and it does not belong to anybody else. Therefore there was absolutely no necessity much less any circumstances warranting the appellate court to set aside the well F.A.O. 113/2006 -8- considered judgment and decree of the trial court and remand the case to the trial court for fresh disposal. I do not find any mistake in dismissing the suit. Therefore the order of remand passed by the appellate court is set aside and the appeal A.S. 8/2003 is dismissed and the judgment and decree of the trial court stands confirmed. The F.A.O is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm