IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 161 of 2011()
1. N.C.GEORGE, AGED 38 YEARS, S/O. CHACKO,
... Petitioner
Vs
1. N.C.JOHN, AGED ABOUT 49 YEARS, S/O.
... Respondent
2. N.C.JAMES, AGED ABOUT 41 YEARS,
3. N.C.BONNACHAN, AGED ABOUT 38 YEARS,
4. BASIL C.NEDUMKALLEL, AGED ABOUT 37 YRS,
5. VARGHESE @ KUTTY, AGED ABOUT 72 YEARS,
For Petitioner :SRI.JOICE GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/02/2011
O R D E R
S.S.SATHEESACHANDRAN, J
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R.S.A No.161 OF 2011
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Dated this the 8th day of February 2011
JUDGMENT
Plaintiff is the appellant. Concurrent decision rendered by
the two courts below in a suit for declaration and injunction by
which the appellant/plaintiff was nonsuited is challenged in this
appeal.
2. The dispute in the case pertains to a road described as
‘B’ schedule, which according to the plaintiff was a private way
formed from portions of his registered holding. ‘C’ schedule is a
portion of ‘B’ schedule leading to his residential building situate in
‘A’ schedule beside ‘B’ schedule road. ‘B’ schedule road was
previously having only a width of 1.5 feet, but, later, with the land
taken from the registered holding of the plaintiff, it was widened
and at present it has a width of 14 feet. The defendants had been
permitted by the plaintiff to make use of the road for carrying out
constructions in their property situate beside the road. But, they
have absolutely no right over the road according to the plaintiff.
A portion of the property belonging to the 5th defendant had also
been made use of for the purpose of widening ‘B’ schedule road,
but, in view of continuous use of the road by the plaintiff with
R.S.A No.161 OF 2011 – 2 –
hostile animus denying the right of the 5th defendant and all
others over the road, whatever right 5th defendant had over the
portion of the land surrendered for widening the road had been
lost by his adverse possession, according to the plaintiff. On the
above basis, the plaintiff sought for a declaration of his title and
possession over ‘B’ schedule and an injunction restraining the
defendants from interfering with his rights over ‘B’ schedule and
and ‘C’ schedule roads. Resisting the suit claims, the defendants
filed a joined written statement in which among other contentions
they contended that previously all the properties were paddy
lands, and, later, after reclamation, the lands had been converted
to garden lands. The road which now exists as ‘B’ schedule was
previously only a ridge and on surrender of properties on both
sides by the land owners, ‘B’ schedule road had been formed,
over which the plaintiff has no proprietory or any other right to
the exclusion of the defendants and others, who too are entitled
to use the same as of right. According to these defendants, it is
not a private road, but, a public road, which has attained the
character as such by long and continuous use of the public as of
right. On the materials placed by both sides, which consisted of
R.S.A No.161 OF 2011 – 3 –
PW1 and PW2 and Ext.A1 for the plaintiff and DW1 and DW2 and
Exts.C1 to C3 reports prepared by an advocate commissioner
deputed by the court for local inspection, it was found that the
claim raised by the plaintiff for declaration was unsustainable as it
was shown that he has no exclusive title over plaint ‘B’ schedule.
The trial court also noticed that despite the specific challenge
raised by the defendants, no attempt was made by the plaintiff to
take out a commission and identify his registered holding from
which ‘B’ schedule property had been carved out, which was his
specific case for seeking the declaratory relief. The contentions
raised by the defendants were found more probable, trustworthy
and convincing to hold that ‘B’ schedule is a public road. In that
view of the matter, the trial court dismissed the suit. As against
the decree of dismissal, the plaintiff preferred an appeal. The
lower appellate court, after reappraisal of the materials,
concurring with the conclusions formed by the trial court turned
down that appeal.
3. Perusing the judgments rendered by both the courts
below, I find that the conclusion formed, on the materials placed,
to hold that the appellant/plaintiff is not entitled to the
R.S.A No.161 OF 2011 – 4 –
discretionary reliefs canvassed in the suit does not suffer from
any infirmity leave alone any illegality. The identification of ‘B’
schedule property in the backdrop of the case set up by the
plaintiff that it previously formed part of his registered holding,
with reference to his title deed was inevitable to sustain the
reliefs canvassed by him in the suit. That was not done. Further
more, the evidence tendered in the case disclosed that the
defendants and others, including members of the public, have
been exercising right over ‘B’ schedule for quite some time and it
was not based on any permission accorded by the plaintiff.
Conclusion drawn on the materials placed that ‘B’ schedule is a
public road cannot at all be found fault with. There is no merit in
the appeal, and it is dismissed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
P.A to Judge
vdv