IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 SA.No. 856 of 2000(B) --------------------- AS.22/1997 of SUB COURT, THIRUVALLA OS.35/1992 of MUNSIFF COURT, THIRUVALLA .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ------------------- 1. BALAN PILLAI, SON OF KUTTAN NAIR, KALAYAKKATTIL VEETTIL, NJALBHAGOM, KAVIYOOR, THIRUVALLA. 2. SIVARAMAN NAIR, ENNOOLIL VEETTIL, -DO- -DO- BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT/APPLLANT/PLAINTIFF: -------------------- ANNAMMA MAHA, W/O.NINAN MATHAI, VAZHAYIL VEETTIL, NJALBHAGOM MURI, KAVIYOOR, THIRUVALLA. ADV. SRI.CHERIAN GEEVARGHESE FOR R1 SRI.P.HARIDAS FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A.NO.856/2000 ORDER ON CMP.NO.2245 OF 2000 IN S.A.NO.856 OF 2000 --------------- DISMISSED 24/11/2010 Sd/- HARUN-UL-RASHID, JUDGE. TRUE COPY P.S. TO JUDGE. HARUN-UL-RASHID,J. ------------------------------- S.A. NO. 856 OF 2000 ------------------------------- DATED THIS THE 24TH DAY OF NOVEMBER, 2010 JUDGMENT The substantial questions of law framed in this appeal are as follows: “A) Whether the suit for declaration of public right of way maintainable without applying for leave of the court under Section 91(1) of the C.P.C.? B) Whether a suit to declare such a right of way for the public maintainable without pleading that the defendants have dedicated the pathway for use of the public or in the alternative without a case of easement being pleaded by plaintiff? C) Whether a right by prescription of easement could be established even if the property of a neighbour was used as a pathway when such property is left unenclosed without the least idea that they are using the property as pathway was as of right?” 2. Defendants in O.S.No.35/92 on the file of the Munsiff's Court, Thiruvalla are the appellants. This appeal is directed against the judgment and decree in A.S.No.22/97 on the -2- S.A.No.856/2000 file of the Sub Court, Thiruvalla. The suit was filed for declaration of right of way of plaintiff and others over item No.2 pathway lying in between the properties of the defendants and also for mandatory injunction to remove the obstruction caused by the defendants and for other consequential reliefs. The trial court dismissed the suit. The Appellate Court set aside the judgment and passed a decree declaring plaintiff's right to use plaint item No.2 as a public pathway, directing the defendants to restore the destructed portion of plaint item No.2 pathway, to demolish the wall constructed in the middle and on the western side of the pathway and also to remove other obstructions. It is further directed that in case the defendants fail to obey the decree, the plaintiff can apply for execution of the decree to get the above-said acts done through court. The Appellate Court also granted prohibitory injunction restraining the defendants from causing any obstruction to use the pathway. The connected suit (O.S.No.34/92) was filed by the 2nd -3- S.A.No.856/2000 defendant for injunction against the plaintiff in O.S.No.35/92. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in O.S.No.35/1992. 3. The trial court jointly tried O.S.No.35/92 along with O.S.No.34/92. O.S.No.35/92 is treated as main case for recording evidence. PWs.1 to 4 were examined and Ext.A1 and A2 were marked on the side of the plaintiff and DWs.1 and 2 were examined and Exts.B1 to B4 were marked on the side of the defendants. Commission reports and sketch were marked as Exts.C1 to C3(a). Exts. X1, X1(a) to ©, X2 (a) and X2(b) were marked as witnesses exhibits. 4. Plaint item No.1 property belongs to the plaintiff's husband. There is no dispute regarding the title of plaintiff's husband. The plaintiff is in possession of item No.1 on behalf of her husband, who is working abroad. Plaintiff contended that item No.2 is a public pathway. The said contention is denied by the -4- S.A.No.856/2000 defendants. The very existence of such pathway is disputed by them. The pathway starts from the Panchayat road which is on the western side of the properties of the defendants and proceeds east to terminate in another way. The property description shows that a portion of item No.2 runs in between the properties of the defendants, i.e. on the northern side of the lst defendant's property and the southern side of the 2nd defendant's property. The remaining portion of the pathway is shown to be lying on the southern side of plaint item No.1. The learned Munsiff found that the disputed pathway never existed. The Appellate Court examined the question as to whether the said finding is correct or not. The existence of the pathway on the southern side of the plaint item No.1 is not a disputed fact. The Appellate Court on facts found that the portion of the pathway which lies in between the properties of the defendants, was destroyed by them and the area of the pathway was annexed to their properties on the date of filing of the suit. So -5- S.A.No.856/2000 the dispute mainly centres round the existence of the portion of the pathway alleged to have in existence in between the properties of the defendants. 5. The Appellate Court appreciated the evidence. The plaintiff was examined as PW1. The evidence tendered by PW1 was discussed and appreciated by the Appellate Court. PW3, who is the resident of the locality, deposed that the disputed pathway is existed in between the properties of the defendants and that they closed the pathway. The Appellate Court on an appreciation of the oral evidence of PWs.1 and 3, observed that their evidence prima facie suggested that the disputed pathway was in existence and that the defendants destructed it and shared the same by annexing northern half to the property of the 2nd defendant and the southern half to the lst defendant's property. There was site inspection on three occasions. Ext.C1 is the report and C1(a) is rough sketch prepared by the Commissioner. The Commissioner had shown in -6- S.A.No.856/2000 the sketch the lie and location of the disputed pathway. The Commissioner reported that there were evidences on the land for him to form an opinion that the disputed pathway was in existence and that it was destroyed. The Commissioner reported that broken glass pieces and uprooted pineapple plants were spread in the disputed pathway. The Appellate Court observed that the broken glass pieces and the thorny pineapple plants must be spread so as to prevent the use of the disputed pathway. The Commissioner also noted a new granite wall in the middle of the disputed pathway besides another granite wall on the western side of the way at its mouth. The Commissioner was examined as CW1. She proved her report and the facts reported by her. Ext.C1 report supported the case of the plaintiff. The very same Commissioner was deputed again. She submitted Exts.C2 report and C2(a) sketch. She excavated earth at different points pointed out to her by the plaintiff. The Commissioner was deputed to dig out mud and -7- S.A.No.856/2000 ascertain the facts. She saw the remnants of the old boundary on either side of item No.2. She also saw a boundary stone at the northern-eastern corner of the disputed pathway. The existence of the said stone is reported in Ext.C1 as well. When mud was removed 9 ft. south of the said boundary stone, the Commissioner saw the old boundary stones. Those stones were found very close to the trees stood in the lst defendant's property in a row. The Appellate Court noted that the said row of trees and old boundary stones so close to the trees are very significant and held that it is a matter for reasonable inference that the property in the possession of the lst defendant extended only upto the old boundary stones which is close to the row of the trees. The stones of the old boundary were seen by the Commissioner in the middle portion of the same property, when mud was removed from that portion. By excavating mud, the Commissioner saw the stones of the old boundary 2 ft. 8 inches north of the newly constructed stone wall. -8- S.A.No.856/2000 Similar stones were seen underneath the mud by the Commissioner on the northern side of item No.2 towards the west. Thus the Commissioner noticed the old boundary stones on either side of item No.2. In the sketch marked as Ext.C2(a) the Commissioner has shown the exact points where she saw stones of old boundary on either side of item No.2. 6. The Appellate Court placing reliance on the oral evidence of PWs.1 and 3 and Exts.C1 and C2 reports held that the disputed pathway did exist. The Commissioner gave oral evidence and spoke to the facts reported by her. The Appellate Court believed the evidence on the basis of the materials on record. The Appellate Court held that sufficient and satisfactory evidence is available to find that the disputed pathway existed and that it was destructed on the eve of the suit. Before arriving at the above-said conclusions, the Appellate Court also examined the oral evidence of DWs.1 and 2, Exts.C3 and C3(a) report and rough sketch. The -9- S.A.No.856/2000 trial court on the basis of the evidence held that no pathway as mentioned in the plaint schedule was in existence. The Lower Appellate Court on the very same set of evidence, which I have discussed in the preceding paragraphs, reversed the findings of the trial court and held that the existence of the pathway as on the date of the suit is proved. The Lower Appellate Court also examined the further question as to whether it is a public pathway. The pathway was lying in between the properties of the defendants. Both of them never needed such a pathway as they have direct access to the western Panchayat road. The disputed pathway was therefore not meant for the defendants. It must be a pathway used by others. The Lower Appellate Court, after considering the contentions of the defendants in the suit, rightly observed that it is not necessary to identify the person, who dedicated his land for public use and that the exact point of time at which the dedication was made, is also not material. What prompted the dedicator to dedicate his land -10- S.A.No.856/2000 is also not a matter for enquiry. The Lower Appellate Court also observed that it is more so in a case like this where the contention is that dedication was made long ago. The Court rightly held that what is important is the factum of dedication, an animus to dedicate and that it is not necessary that dedication should be declared or proclaimed. It can be implied. Long user of a pathway by the public is sufficient evidence for dedication. The oral evidence tendered by PWs.1 and 3 was relied on by the Appellate Court to hold that item No.2 was used as a pathway by the public for quite a long time and that the dedication can be inferred from such long user of the pathway by the public. On facts the Appellate Court held that plaint item No.2 is a public pathway and that the plaintiff is entitled to declaratory relief and prohibitory injunction. Based on the findings the Appellate Court decreed the suit. The findings are based on the facts, evidence and circumstances. The reasons stated by the Appellate Court for reversing the findings of the trial -11- S.A.No.856/2000 court is justified in all respects. I have also re-stated the reasons stated by the Lower Appellate Court for passing a decree in favour of the plaintiff. The appellants have not made out any valid grounds for interference in the appeal filed under Section 100 CPC. No question of law much less any substantial questions of law arise for consideration in this appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv.