IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 206 of 1994()
1. KUNHAMUTTY
... Petitioner
Vs
1. MOHAMMED @ KUNHAVA
... Respondent
For Petitioner :SRI.M.A.MANHU
For Respondent :SRI.M.K.DAMODARAN (SR.)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
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S.A.No. 206 OF 1994
............................................
DATED THIS THE 12th DAY OF JULY, 2007
JUDGMENT
Plaintiff in O.S.452 of 1986 on the file of Munsiff Court,
Manjeri is the appellant. Defendants are respondents. Appellant
instituted the suit seeking a decree for injunction in respect of
the plaint schedule property Pandikkad Karuvarakundu Road is
running east west through the northern boundary of the plaint
schedule property. Veluvamparamba road starts from the
northern Pandikkad Karuvarakundu road and runs along the
western boundary of the plaint schedule property and thereafter
turns towards the west and proceed to Olipuzha. The dispute in
the suit is with regard to a narrow strip of land which lies to the
east of olipuzha-Kolapuram road which turns towards the west.
2. According to appellant, he had surrendered a portion of
his property towards that road but the disputed portion was not
surrendered and it forms part of his property and he is entitled
to construct a compound wall enclosing the said property
contending that respondents are obstructing the same,
appellant sought a decree for injunction. Respondents resisted
the suit contending that the disputed portion does not form part
SA 206 OF 1994 2
of the property of the appellant and is part of the existing road
and therefore appellant is not entitled to the decree sought for.
A Commissioner was appointed and the Commissioner submitted
Ext.C1 report and Ext.C2 plan. The dispute in the suit is with
regard to plot EOCPDIJNMLKB. According to the appellant, it
forms part of his property. According to respondents, it forms
part of the road. According to appellant, even plot
BKLMNJIHGQF originally formed part of his property and he
surrendered the part which is being used as a road only the
disputed plot. The question is whether the disputed plot is being
used as part of the road or is being enjoyed by appellant as part
of his property. Relying on the report submitted by the
Commissioner and the oral evidence, learned Munsiff entered a
factual finding that the existing road lies to the west of CPD line
as well as to the south of EOC line. It was found that appellant is
not entitled to the decree for injunction in respect of that portion
of the property. Appellant challenged the dismissal of the suit
before Sub Court, Manjeri in A.S.1 of 1989. Learned Sub Judge
on reappreciation of evidence, confirmed the findings of the trial
court and dismissed the appeal. It is challenged in the second
appeal.
SA 206 OF 1994 3
3. The second appeal was admitted formulating the
following substantial questions of law.
1)When the respondents are claiming that a portion of the
property is public road without establishing a right of way
whether respondents are entitled to obstruct the appellant from
constructing a compound wall on boundary of his property.
2) Whether there is a public road and whether the disputed
portion forms part of the public road and if not whether
appellant is not entitled to the decree for injunction refused by
the courts below.
4. On hearing learned counsel appearing for appellants
and respondents it is clear there is no evidence to prove that
there is a public road through the disputed property. But
evidence establish that the disputed property as well as the
admitted portion of the way is being used not only by
respondents but others also as a road. The Commissioner could
even note traces of tire marks, evidencing the fact that it is being
used even for vehicular traffic. The factual finding entered by
the courts below is that a portion of the property of the appellant
including the disputed portion of the property is now used as
road and appellant is not in possession of the property which lies
SA 206 OF 1994 4
to the west of CPD line and to the south of EOC line. In the light
of that factual finding, whether the disputed portion is part of
public road or not, as it is being used as portion of the road,
appellant is not entiteld to get a decree for injunction. Both the
courts entered a factual finding that appellant has not
established his possession of the disputed portion of the
property. That factual finding cannot be interfered by
reappreciating the evidence. In the light of the report submitted
by Commissioner, it cannot be said that the disputed property
has been in the possession of the appellant. Therefore appellant
is not entitled to the decree sought for in the suit. As there is no
merit in the appeal, it is dismissed. If at all appellant has got
any right in the disputed property it is upto him to institute a
proper suit for demarcation of the property with reference to the
title deed and seek recovery of possession.
Appeal dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-