IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WP(C).No.32276 of 2008 (P) ---------------------------------- CMA.26/2008 of DISTRICT COURT,THODUPUZHA OS.143/2008 of MUNSIFF'S COURT,THODUPUZHA .................... PETITIONER: --------------- T.C.JOSEPH @ APPACHAN, S/O.CHACKO, THARANIYIL HOUSE, ARIKUZHA KARA, MANAKKADU VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT: ---------------- M.N.SUKUMARAN, S/O.NARAYANAN, MUNDACKAL HOUSE, ARIKUZHA KARA, MANAKKADU VILLAGE, THODUPUZHA TALUK. ADV. SRI.JOSE JOSEPH ARAYAKUNNEL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.32276 of 2008 (P) APPENDIX PETITIONER'S EXTS:- EXT.P1:- A TRUE COPY OF THE AFFIDAVIT AND PETITION DT.05/05/08 BY THE RESPONDENT. EXT.P2:- A TRUE COPY OF THE COMMISSIONER'S REPORT AND THE SKETCH DT.20/05/08. EXT.P3:- A TRUE COPY OF THE COUNTER DT.27/05/08 FILED BY THE PETITIONER. EXT.P4:- A TRUE COPY OF THE AFFIDAVIT DT.10/06/08. EXT.P4[a]:- DO. DO. BY ANNIE. EXT.P4[b]:- DO. DO. BY SANTHA DATED DO. EXT.P4[c]:- DO. DO BY JOLLY DATED DO. EXT.P5:- A TRUE COPY OF THE ORDER DT.16/06/08 IN I.A. NO.635/08 IN O.S. NO.143/08 EXT.P6:- A TRUE COPY OF THE JUDGMENT IN CMA NO.26/08 DT.05/09/08. EXT.P7:- A TRUE COPY OF THE SKETCH. EXT.P7[a]:- A TRUE COPY OF TAX REGISTER. .................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.32276 of 2008 ------------------------------------------------ Dated this the 12th day of January, 2009 JUDGMENT Heard arguments of both sides. The petitioner is the defendant in O.S.143/08 on the file of the Munsiff's Court, Thodupuzha. The respondent instituted the said suit for a decree declaring his title, ownership and possession over 'B' schedule which is admittedly a pathway. According to the respondent/plaintiff, it is a private road and according to the petitioner/defendant, it is a public road. It is not in dispute that the 'B' schedule is a well formed road through which vehicles including heavy vehicles can be taken. It is also not in dispute that the petitioner has constructed a building in his property having an extent of around 45 cents taking construction materials through the 'B' schedule road and according to the petitioner, W. P. C. No.32276 of 2008 -2- construction of compound wall and developing of residential property by planting trees maintaining garden etc. remains to be done even now. The respondent obtained injunction filing the above suit restraining the defendant from taking heavy vehicles and mini lorries through plaint 'B' schedule road; causing any damage to the retaining wall and from interfering with his peaceful possession and enjoyment of the same. Ext.P5 is the said order. The said order was assailed by the petitioner filing C.M.A.26/08 and the said appeal was dismissed by the appellate court by Ext.P6 judgment but directed the court below to dispose of the suit itself as expeditiously as possible untrammelled by any of the observations made in the impugned order. The grievance of the petitioner is that he is not being permitted by the respondent from taking even mini lorries for transporting materials W. P. C. No.32276 of 2008 -3- into his residential garden through 'B' schedule road which according to him is a public road. It is also not in dispute that several persons are residing by the sides of 'B' schedule road. According to the respondent/plaintiff, they are using the road as per permission given by him whereas according to the petitioner/defendant, they are all using the road as of right being public pathway. It is also the grievance of the petitioner that to avoid taking mini lorries the respondent is keeping one gate closed and locked and has also placed a cross bar above a certain level of the entrance gate so that loaded vehicles cannot be taken into the property through 'B' schedule road. According to the respondent, it was so done to avoid the road being damaged by taking heavy loaded vehicles including mini lorries as by transporting of materials for construction of W. P. C. No.32276 of 2008 -4- building by the petitioner, he has caused damage to the road and that portion of the wall on the side of the road has also collapsed. All these are disputed by the petitioner/defendant. 2. It is vehemently contended by the counsel for the petitioner, that the definite case of the respondent/plaintiff is that the respondents father Narayanan constructed the tharvad house in his property about 55 years back when there was no road in existence to reach 'A' schedule property belonging to him; that in 1960 his father purchased 15 feet width of property for a length of 350 feet and having an area of 7.5 cents reaching up to the main road from Varkey Kinakuzhy and George Choorapuzha paying the then prevailing market value though no registered sale deed was executed but only an unregistered agreement was created and the same is now totally W. P. C. No.32276 of 2008 -5- missing and that in view of the said contention it is evident that the title over the 'B' schedule road claimed by the respondent/plaintiff as a private road is untenable he having no title thereto even on his admitted case; that therefore, when the existence of 'B' schedule road is not in dispute it cannot but be inferred that it is a public road and that the respondent is not entitled to have injunction in force till disposal of the suit so as to render obstacle to the petitioner taking materials using even mini lorry for the purpose of transporting them to his residential plot. It is also the admitted case and is also evidenced by the commission report that several other occupants by the side of the said 'B' schedule road are also using the road. Whether it is on permission of the respondent/plaintiff or not are all matters that have to be considered in W. P. C. No.32276 of 2008 -6- the suit only. However, as matters now stand the respondent has constructed two pillars at the entrance of the road from the public road and has put up gate also. All the same, even according to the case set up by him he has no title over the 'B' schedule road. In the above circumstances, he cannot exercise right over the 'B' schedule road as an owner thereof and cause obstructions to others in using the said road including for the purpose of taking materials to the petitioners residential garden using however, mini lorries and not using heavy lorries like Benz, Leyland etc. which are used to carry loads of ten tonnes and above. No obstruction shall be caused by closing the gate or any portion thereof or placing any cross bar above the gate. The court below shall expedite the trial of the case and shall dispose it of as early as possible and there shall not be any non-co- W. P. C. No.32276 of 2008 -7- operation from the side of the plaintiff in expediting the disposal of the suit. 3. This Writ Petition is thus allowed setting aside Ext.P5 order and Ext.P6 judgment of the courts below and with the above directions. K.P.BALACHANDRAN, JUDGE kns/-