IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 RSA.No. 876 of 2008 --------------------------------- AS.259/2005 of ADDL. DISTRICT COURT, KOTTAYAM OS.187/2002 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT/RESPONDENT/DEFENDANT: T.JOSEPH, S/O.THOMAS, MUKKATTUKUNNELAYA MANTHARA HOUSE, MADAPPALLY MURI, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DIST. BY ADV. SRI.ABRAHAM GEORGE JACOB RESPONDENTS/APPELLANTS/PLAINTIFFS: 1. ANTONY, S/O.JOSEPH, RESIDING AT MUKKATTUKUNNELAYA MANTHARA HOUSE, MADAPPALLY MURI, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DIST. 2. JOSEPH, S/O.JOSE, DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.876 of 2008 -------------------------- JUDGMENT The defendant in O.S.No.187/02 on the file of the Munsiff's Court, Changanassery, who has lost his defence in the first appellate court, is the appellant. The plaintiffs (two in number) instituted the suit aforesaid for a decree of permanent prohibitory injunction in relation to a pathway alleging that the scheduled pathway is a public pathway having 12 feet width and about 1000 metres length shown as ABCDE in the rough sketch attached to the plaint; that it starts from the eastern side of Kannavatta Bridge in Chenganassery- Vazhoor Road and going towards south, it deviates towards east and further going towards south, it joins with Mosco-Cherickal Road; that the people of the locality have been using the plaint schedule pathway for their ingress and egress to the Good Shepherd Higher Secondary School and also to Veroor RSA 876/08 2 Church; that the appellant/defendant is trying to annex the portion of the plaint schedule pathway that runs through his property by enclosing the same and if he does so, it will cause nuisance to the public and irreparable injury will be caused to them and the people of the locality and that hence, the appellant/defendant has to be restrained from causing any obstruction to the scheduled pathway. The suit is one filed under Section 91 of the CPC obtaining permission of the court under Section 91 (b) of the CPC vide I.A.No.1171/02. 2. The suit was resisted by the appellant/ defendant contending, inter alia, that there is no public pathway as described in the schedule; that it is incorrect to say that the plaintiffs and the people of the locality are using the alleged pathway as a public pathway; that there is no pathway in existence as shown ABCDE in the schedule, though a portion of the road shown as CDE in the rough sketch is in existence; that the said RSA 876/08 3 pathway is being used by the plaintiffs and others for the purpose of entering into the Kannavatta- Kannampally Road on the southern side; that however, there was no road in existence through BC portion; that the cause of action alleged in the suit is not correct; that the intention of the plaintiffs is to create a new road in continuation with CDE portion through his property towards south and for that purpose, plaintiffs and neighbouring people tried to take lorry through his property and the same was obstructed by him; that it is thereafter that the present suit is instituted and the plaintiffs obtained a temporary injunction misrepresenting facts; that under the cover of temporary injunction obtained, the plaintiffs have taken Tipper lorry and mini lorry through his property for creating a new road; that BC portion of the plaint schedule pathway is through the middle portion of his property; that he never gave 12 feet width way through BC portion; that the RSA 876/08 4 plaint schedule pathway is not entered in the revenue records or Panchayat records; that since no public pathway is in existence through his property no public nuisance is caused and that the suit has to be dismissed with costs. 3. The trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 to 3 and DW1 and documentary evidence Exhibits A1, B1, C1 and C1(a) dismissed the suit consequent on its finding that the plaintiffs have failed to prove that the plaint schedule pathway is a public pathway. On appeal by the plaintiffs before the first appellate court as A.S.No.259/05, the Additional District Judge set aside the dismissal of the suit allowing the appeal and decreed the suit declaring that the plaint schedule pathway is a public pathway and granting injunction as prayed for by the plaintiffs. Hence this Regular Second Appeal by the aggrieved defendant. RSA 876/08 5 4. It is vehemently contended before me by the learned counsel for the appellant that if the pathway is a public pathway as alleged by the respondents/plaintiffs, it has to find a place in the revenue records or Panchayat records and that the plaintiffs having not proved existence of such a public pathway, they are not entitled to have a decree as prayed for. He also contends that user of the pathway continuously for 50 years is also not established by the evidence adduced by the plaintiffs. According to him, though the plea was that the pathway was being used for the last 50 years, while tendering evidence, the period of such user has been stated as 40 years at one place and as 30 years in another place and that the plaintiffs, who have miserably failed in establishing the case alleged, are not entitled to any relief. 5. The respondents/plaintiffs submitted a rough sketch along with the plaint, which was placed RSA 876/08 6 before me by the counsel for the appellant/ defendant for perusal. He has also placed before me the Commission Report and plan. The rough sketch produced by the respondents/plaintiffs shows that on the western side is the Changanassery- Vazhoor Road, on the eastern side is the Cherickal Road, on the northern side is the Thengal-Mosco Road and on the southern side is the Panchayat Road which starts from Changanassery-Vazhoor Road and proceeds towards east up to the eastern side of the property of the defendant and then proceeds towards north to join the Thengal-Mosco Road. It is from the said Panchayat Road, immediately after a culvert on the said road portion on the southern side of the properties of the respondents/ plaintiffs and the appellant/defendant, the road branches and proceeds as BCDE road, according to the case of the plaintiffs and then connects Cherickal Road on the east. Even, according to the case of the appellant/defendant, CDE portion of the RSA 876/08 7 plaint schedule pathway is in existence. But, according to him, there is no road portion in between B and C points and both on the eastern and western sides of the said alleged road portion is the property belonging to the appellant/defendant himself. As per the contentions raised in the written statement, the case of the appellant/ defendant is that it is after obtaining the ex parte injunction that lorries were taken through his property to enable the BC portion formed as a road so as to have a complete road BCDE connecting the Panchayat Road on the south and the Cherickal Road on the east. 6. In this context, it is worthy to note that the suit was filed on 18.7.2002 and an ex parte commission was taken out by the respondents/ plaintiffs, who inspected the property on 20.7.2002 in the presence of plaintiffs and several others in the locality, though, however, the defendant was not present at the time of inspection. Exhibit C1 RSA 876/08 8 (a) rough sketch produced by the Commissioner along with Exhibit C1 report shows existence of a road as shown by the respondents/plaintiffs in the rough sketch filed with plaint, which is having a width of 12 feet and at certain portions, a width of 12½ feet. The dispute is in relation to existence or otherwise of the road at the portion marked as BC in the rough sketch. Exhibit C1(a) shows that at the entry point B, the alleged pathway is having 16 feet width and at rest of the points the width is only 12 feet. Both, on the eastern and western sides of the said disputed portion of the pathway are the properties of the defendant and rubber trees are planted therein. But, there was no rubber trees on the alleged pathway between B and C points. The defendant has no case that any rubber trees were cut and removed by the plaintiffs or anybody else from that portion. On the eastern side of the disputed portion, is the property of the defendant with a residential house. That faces RSA 876/08 9 towards west so as to have access from the disputed portion of the road and wire fencing also is there on the southern side of the property of the defendant, which shows that though the southern side is having frontage to the Panchayat Road, the defendant is not having access to his residential house from the southern road. Counsel for the appellant/defendant submits that though entrance is provided for the defendant from the road formed towards north from the Panchayat Road on the south so as to enable access from the west to the residential house of the defendant, beyond that portion, there is no road towards north. This means that from B point there is road up to a certain limit towards north, viz., towards the C point, though, according to the defendant, it does not reach up to the C point, but only up to the entrance to the residential house on the eastern side within the property of the defendant. The report of the commissioner does not show that any RSA 876/08 10 portion of the road between B and C points is road portion newly formed within two or three days after obtaining injunction as contended by the appellant/ defendant. All the same though there is no pleading in the written statement, it is contended before me by the counsel for the appellant that the first plaintiff had been permitted to take lorry through the disputed portion of the road to carry materials for construction of the house in the property of the first plaintiff. Commission report and rough sketch does not show that there is any house in the property of the first plaintiff. Absence of any trees between B and C points on the disputed portion of the pathway and existence of width of 12 feet for the pathway also at that portion strongly suggests that the said portion is also part of the pathway, which is admittedly in existence along the CDE portion. Not even a question is put to PW3, who prepared Exhibits C1 report and C1(a) plan, suggesting that formation of the road in between B RSA 876/08 11 and C points was after obtaining injunction and two days prior to the commissioner's visit and that it could be evidenced on his inspection. 7. The argument advanced by the counsel for the appellant shows that, pathway is there along the disputed portion in between B and C points as well though his explanation is that the first plaintiff was being permitted to take lorries to his property on consent. However, in view of the admitted fact that the defendant also is having access to his residential building on the east of B.C portion of the disputed road from a point of the disputed pathway in between B and C and even on the submissions made, it is not in dispute that there are no trees in between the road portion B and C and that it lies as a road as reported by the Commissioner and it is also evident that there are ever so many houses and holdings on both sides of the said pathway and that the said pathway is well formed with a width of 12 feet and even 12½ feet at RSA 876/08 12 certain portions, existence of a pathway, having a width of 12 feet stands established on evidence. The contention that is vehemently urged before me by the counsel for the appellant is that the plaintiffs have miserably failed to prove that it is a public road/pathway as it is not shown by causing production of documents that the said road/ pathway is one which is vested in the Panchayat. According to the learned counsel, if it is a road/ pathway vested in the Panchayat, certainly, records will be maintained by the Panchayat evidencing that aspect and therefore, the case of the plaintiffs that it is a public pathway cannot be accepted. The records maintained by the Panchayat, no doubt, may show certain roads vested in the Panchayat. At the same time, the fact that a particular road is not shown in the records as Panchayat road or public road does not mean that there is no such public road as alleged. There is no dispute for the appellant/defendant that up to C point, the RSA 876/08 13 disputed road in between E and C points is not being used by the public. He has also no case that, that portion between E and C is shown as public road in the Panchayat records and that the portion between B and C points is not shown in the Panchayat records as a public road/pathway as that portion is not a public pathway. A pathway which is being used by the public, for the mere reason that it is not shown as public pathway in the Panchayat records, does not cease to be a public pathway. It also cannot be disputed that all pathways in existence, which are not shown as public pathways in Panchayat records, can be obstructed or closed by interested parties taking law into their own hands. 8. In the instant case, inasmuch as the admitted facts would show that the CDE portion is a public pathway and the report of the Commissioner shows that pathway of the same width of 12 feet is there from C to B points as well, the case of the RSA 876/08 14 respondents/plaintiffs that the BCDE pathway is a public pathway has to be accepted, as rightly held by the first appellate court. There is no question of law and much less any substantial question of law arising for consideration by this Court in this Regular Second Appeal so as to have this Regular Second Appeal admitted. In the result, refusing admission, I dismiss this Regular Second Appeal in limine. 11th March, 2009 (K.P.Balachandran, Judge) tkv