IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 FAO.No. 312 of 2009() ------------------------------ AGAINST THE ORDER DATED 07/11/2009 IN IA 2858/09 IN AS.69/2009 of PRL.SUB COURT, IRINJALAKUDA .................... APPELLANTS/PETITIONERS/PLAINTIFFS: ----------------------------------------------------------- 1. SURESH, S/O.KUNDUMATTATHIL KARAPPAN, EAST CHALAKUDY VILLAGE AND DESOM, MUKUNDAPURAM TALUK. 2. SUJITH, S/O.KUNDUMATTATHIL SUKUMARAN, EAST CHALAKUDY VILLAGE AND DESOM, MUKUNDAPURAM TALUK. BY ADV. MR.K.G.BALASUBRAMANIAN RESPONDENT/RESPONDENT/1ST DEFENDANT: ------------------------------------------------------------------- POULOSE, S/O.KAITHARATH MANAPPURAM VAREED, EAST CHALAKUDY VILLAGE AND DESOM, MUKUNDAPURAM TALUK. BY ADV. MR.S.R.DAYANANDA PRABHU. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 312 OF 2009 = = = = = = = = = = = = = = = Dated this the 3rd day of December, 2009. J U D G M E N T This appeal is preferred against the order of the Subordinate Judge, Irinjalakuda in I.A.2858/09 in A.S.69/09. The said appeal is preferred against the judgment and decree of the Munsiff Court, Chalakudy in O.S.52/06. This O.S.52/06 was tried along with O.S.94/08 which was filed by the defendant in O.S.52/06 against the Chalakudy Municipality. 2. The crux of the matter is with respect to the right over B schedule property. The defendant in O.S.52/06 would contend that the B schedule pathway belongs to him exclusively and the plaintiff in the suit has no right or possession or any manner of enjoyment over the said pathway. On the other hand the plaintiff in the suit would contend that it is a public pathway belonging to the Municipality and therefore just like any other citizen he is F.A.O. 312 OF 2009 -:2:- also entitled to use that pathway. The said defendant in O.S.52/06 had filed a suit against the Municipality to declare his right over that way holding that the way does not belong to the Municipality. These two suits were jointly tried and on the culmination of the trial the learned Munsiff found that there are no materials to establish that the way belong to the Municipality and it was found that the plaintiff in that suit is entitled to the relief in the suit which is also a subject matter of an appeal pending before the appellate Court. Here the court found that the plaintiff does not have any right for the reason the property belongs to the plaintiff exclusively and it is not a public pathway as contemplated. It has to be stated that the plaintiff in O.S.52/06 is a purchaser of the property from previous owner, the previous owner had approached the Court with O.S 198/95 which was a fight between the predecessor in interest of the plaintiff in O.S.52/06 and the defendant in O.S.52/06. It was the contention of the plaintiff F.A.O. 312 OF 2009 -:3:- in O.S.198/95 that it is a pathway which is taken and covered by his document of title and the rival contention of the present defendant in O.S.52/06 was that pathway is covered by his document. So really it was a dispute with respect to a private pathway over which the parties claim right under documents. Learned Munsiff after considering the materials dismissed the case of the predecessor of the plaintiff and thereby his entitlement to the right of way was disallowed. Now it is from that person the plaintiff in the suit has purchased the property. He wants now to project that the way is a public pathway and therefore just like any other citizen he is entitled to it. Meanwhile the defendant in the suit in O.S.52/06 had instituted another suit against the Municipality for declaration that it is his way. The matter in both the cases were jointly tried, evidences were adduced from the side of the defendant as well as from the side of the plaintiff in that suit. Learned trial judge came to a F.A.O. 312 OF 2009 -:4:- conclusion that Municipality being a statutory public body is bound under the provisions of law to maintain a register with respect to the ways vested in it. No such document is forthcoming. The Court also found that when the Corporation or a Municipality forms a pathway the mode of formation is by taking consent from the owners of the respective properties for the purpose of formation of the road. It was also not produced before Court. Therefore the Court accepted the contention of the plaintiff in O.S.94/08 and granted a decree. So as the matter stands now there is a finding in favour of the defendant in O.S.52/06. There is nothing prima facie at this stage to hold otherwise so as to give an order of injunction. Everything depends upon the ultimate outcome of the appeal filed against the judgment and decree in O.S.94/98. If the plaintiff does not succeed in that case it becomes a pathway of the Municipality, then just like any other citizen the defendant will also have right over F.A.O. 312 OF 2009 -:5:- the pathway. But till that time in the absence of materials there is nothing to show a prima facie right and the Court may not be justified in granting an order of injunction. The learned counsel for the appellant had drawn my attention to S.316 of the Municipality Act which provides for lighting in public streets. It is a matter that has also to be established and it can be a piece of evidence in a suit O.S.94/08. I am not inclined to consider that material as a piecemeal one to declare a particular pathway as a public pathway. Therefore from the foregoing discussions I feel there is no ground to interfere with the refusal to pass an interim order in favour of the appellant in the case. I make it very clear that the observations made by me in interlocutory stage of a case shall not be taken as a guideline to decide the appeal. Considering the importance and urgency of the matter I direct the learned Subordinate Judge to consider this appeal as well as the appeal preferred against O.S.94/08 as F.A.O. 312 OF 2009 -:6:- expeditiously as possible at any rate before the Court closes for summer holidays of 2010. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-