IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 RSA.No. 350 of 2010() --------------------- AS.24/2006 of SUB COURT,THODUPUZHA OS.129/2000 of MUNISIFF-MAGISTRATE COURT,THODUPUZHA .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ---------------------------------------------------- 1. NARAYANAN NAIR, AGED 89 YEARS, S/O.KRISHNAN NAIR, OZHIYARATHU HOUSE, KOLANI KARA, THODUPUZHA VILLAGE, NOW RESIDING AT KOLLAPARAMBIL HOUSE, NEAR NGO QUARTERS, MUVATTUPUZHA. 2. RENUKA, D/O.NARAYANAN NAIR, OZHIYARATHU HOUSE, KOLANI KARA, THODUPUZHA VILLAGE NOW RESIDING AT KOLLAPARAMBIL HOUSE, NEAR NGO QUARTERS, MUVATTUPUZHA. BY ADV. SRI.E.N.VISHNU NAMBOODIRI SRI.N.N.ELAYATH RESPONDENT(S)/RESPONDENT/DEFENDANT: ----------------------------------- THODUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, THODUPUZHA. ADV. SRI.P.K.SOYUZ,THODUPUZHA MUNICIPALIT FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON 12/10/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.350 OF 2010 (G) ----------------------------------- Dated this the 12th day of October, 2010 J U D G M E N T Plaintiffs are the appellants. Their suit for declaration of title, mandatory injunction and recovery of possession was dismissed by the trial court, which in appeal, was confirmed by the lower appellate court. Aggrieved by the concurrent decision, the plaintiffs have preferred this second appeal. 2. The 2nd plaintiff is the daughter of the 1st plaintiff. Both of them together claimed title and possession over the plaint property comprised in two survey numbers namely, Sy.Nos.353/7 and 353/16 of Thodupuzha village under two registered deeds. Suit was instituted as if the plaint schedule was a compact plot but, later, the schedule was amended alleging that a portion of the property described had been trespassed upon and converted into a road by the defendant violating the order of status quo passed by the court. Portion of the property which was alleged R.S.A.NO.350/2010 2 to have been trespassed upon and converted into a road was separately shown as B schedule as having an extent of 16.655 cents of land. The defendant, a local authority, in association with some people in the locality, is bent upon snatching B schedule property of the plaintiffs and to convert it as a public road, was the case of the plaintiffs for the reliefs canvassed in the suit. Plaintiffs have not dedicated nor surrendered any portion of their property and the public have no right over B schedule property, was their case. Resisting the suit claim, the defendant contended that a public road passed through the eastern side of the property of the plaintiffs and it was in existence long prior to the institution of the suit. It was further contended that the above road commencing from a public road on the north proceeds through the eastern side of the property of the plaintiffs to a Harijan colony situated on the south. To the north of the plaintiffs property and that of the road, there is a canal over which the Government had constructed a concrete bridge, according to the defendant, for continuation of the road. It was further contended that a boundary wall on the east of the R.S.A.NO.350/2010 3 plaintiffs property separated the road on its western side. Contending that the road had been dedicated to the public and the people and vehicles are using the same as of right, and that the suit was filed at a time when steps were taken for tarring that road, the defendant questioned the entitlement of the plaintiffs for the decree applied for. 3. The trial court, after appreciating the materials tendered with reference to the pleadings of the parties, came to the conclusion that the contention raised by the defendant that B schedule property had been dedicated much earlier to the public to enjoy it as a road and the plaintiffs have no title or possession over that property. In that view of the matter, the plaintiffs were non-suited. The lower appellate court, after re-appreciation of the evidence concurred with the findings entered by the trial court and confirmed the dismissal of the suit dismissing the appeal preferred by the plaintiffs. Concurrent decision so entered by the two courts below is challenged in this appeal. R.S.A.NO.350/2010 4 4. Plaintiffs have established their title over B schedule property and no worth mentioning material was tendered by the defendant to sustain the contention that B schedule property had been dedicated to the public as a road, is the submission of the learned counsel assailing the findings entered by the two courts below as improper and unsustainable, both under law and facts. The materials produced in the case, according to the counsel, were misconstrued and misappreciated and that has resulted in forming wrong conclusion by both the courts resulting in manifestation of injustice. Perusing the judgments rendered by the courts below, I find that there is absolutely no merit in the challenges raised by the learned counsel for the appellants impeaching the correctness of the concurrent decision rendered in the case. Even according to the plaintiffs, B schedule remains as a road, which, according to them, was provided for access to their property. It is their further case that a concrete bridge was put up over the canal situated to the north by the Government to facilitate the enjoyment of the properties obtained by them under registered deeds. That bridge was constructed over a R.S.A.NO.350/2010 5 canal touching a public road to the further north and from that bridge, B schedule proceeds to the south to a Harijan colony after the plaint property, is not disputed. A boundary wall aged more than ten years separated the road on its west from the property enjoyed by the plaintiffs is also conceded. Except the area of the road which lies to the east of that boundary wall, the north and south of that road had been tarred by the local authority has also been established in the case. The portion of the property lying to the east of that boundary wall, according to the defendant, is kept untarred in view of the order to maintain status quo passed in the suit. Both the courts below have found that in the transfer documents, Exts.B1 to B5, executed by the 1st plaintiff alienating portions of his property to different persons, the disputed road had been shown as one among the boundaries. Had such road been exclusively belonging to the 1st plaintiff such boundary demarcation would have been specifically made as the road belonging to the 1st plaintiff, but it was only shown as a road was taken note of by the courts below with reference to the other materials tendered in the case including the road register R.S.A.NO.350/2010 6 produced by the defendant, local authority, to form a conclusion that the claim raised by the plaintiffs over B schedule, which at present, lies in continuation of the road situate to the south and north enjoyed by the public, is totally bereft of any merit. The existence of the boundary wall separating the plaintiffs' property from the B schedule road and it was put up some ten years with the specious explanation offered by the 1st plaintiff examined as PW1 that it was constructed to prevent entry of cattle into the property, persuaded the courts below that the claim over the road by the plaitniffs as part of their property, cannot be accepted. It is also seen that the plaintiffs have not made any attempt to identify the 2.66 acres of land covered by the release deed Ext.A2 despite setting up a case that B schedule way described in the plaint formed part of the above extent of land. Identification attempted to be made in respect of A schedule under Ext.C2 (a) plan without reference to the entire extent of the land, 2.66 acres covered by the A2 release deed, it was found, is totally unreliable. It is to be noted that the defendant has not disputed the title of the plaintiffs over A schedule R.S.A.NO.350/2010 7 property excluding the B schedule road. A schedule is described as having 18.25 cents in survey No.353/7 and 16.655 cents in survey No.353/16, the former obtained by the 1st plaintiff under Ext.A1 deed, and the latter as part of the 2.66 acres of land by 2nd plaintiff. By amendment of the plaint later, the 16.655 cents of the land is shown as the B schedule, which admittedly, is a road with the plaintiffs claiming it as exclusively belonging to them and the defendant, local authority, contending that it is a road dedicated to the public. Without identification of the 2.66 acres of land covered by the release deed of the 2nd plaintiff, needless to point out, the title and possession claimed by the plaintiffs leave alone the question of recovery sought for, was permissible in the case. No attempt to identify the property as indicated was made by the plaintiffs. Further more, the materials tendered in the case clearly demonstrate that the road described as B schedule by the plaintiffs is enjoyed by the public as of right and it is only a part of a public road. The dismissal of the suit, in the proved facts of the case, by the trial court and its confirmation by the lower appellate court, is only proper and R.S.A.NO.350/2010 8 correct and it does not warrant any interference. Appeal is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.350/2010 9