Kerala High Court
Johny vs Joseph on 15 January, 2001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2013/3RD ASWINA, 1935
SA.No. 565 of 2001 ( )
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AGAINST THE JUDGMENT IN AS 216/1997 of
ADDL.DISTRICT COURT, THRISSUR DATED 15/01/2001
AGAINST THE JUDGMENT IN OS 415/1994 of
II ADDL.MUNSIFF COURT,THRISSUR DATED 22/03/1997
APPELLANT(S):
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JOHNY, S/O. ELUVATHINGAL KOCHAPPU
PARAPPUR, THOLUR VILLAGE, THRISSUR TALUK
THRISSUR DISTRICT
BY ADV. SRI.N.P.SAMUEL
RESPONDENT(S):
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1 JOSEPH, S/O. ARANGASSERY LONAPPAN
PARAPPUR DESOM, THOLUR VILLAGE,
THRISSUR TALUK, THRISSUR DISTRICT
2 JOHNSON, S/O. ARANGASSERY KOCHAPPU
PARAPPUR DESOM, THOLUR VILLAGE,
THRISSUR TALUK, THRISSUR DISTRICT
3 A.T.JOSEPH, S/O. ARANGASSERY THOMAS
PARAPPUR DESOM, THOLUR VILLAGE,
THRISSUR TALUK, THRISSUR DISTRICT
R1 TO 3 BY ADV. SRI.P.GOPAKUMARAN NAIR
R1 TO R3 BY ADV. SRI.C.S.DIAS
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-09-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
das
N.K.BALAKRISHNAN, J.
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S.A. No. 565 of 2001
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Dated this the 25th day of September, 2013
JUDGMENT
The plaintiff is in appeal. His suit is for declaration. The B schedule property is a way which was kept in common for the use of the predecessors of the appellant and respondents. It is also his case that for more than 50 years of the suit, the said pathway was used as common pathway by the plaintiff and the defendants. But in evidence, it was contended that the B schedule pathway is a public pathway. No survey commission was taken out. A rough sketch of the plaint A schedule property and of the B schedule pathway has been produced. The plaint A schedule property is situated immediate to the north of Amala- Thrissur road. The B schedule pathway lies to the west of the plaintiff's house. According to the defendants, there was a narrow pathway and it was widened by carving out land from the defendants' property. In Ext.B1 partition deed of 1954, the eastern boundary of items 1, 7, 5 and 3 was shown as a way of a width of one dannu. The plaint A schedule property was not a property which was subjected to partition. Ext.B1 partition deed S.A.No.565/2001 2 was entered into by the respondents and other members.
2. The courts below found that there is no consistency in the case advanced by the appellant as to whether it is a public pathway or a pathway commonly used by the appellant and respondents. The trial court has noticed the difference between the claim of a public pathway and a pathway which was described as one used in common by the plaintiff and the defendants.
3. The learned counsel for the respondents has pointed out the fallacy in the plea raised by the appellant that the B schedule pathway was used by the appellant as access to the plaint A schedule property, where the residential house of the appellant is situated abutting the road mentioned above. No acceptable evidence could be adduced before the courts below to hold that the B schedule pathway is a public pathway. There is also no evidence to show that it was used as a common pathway by the plaintiff and the defendants. A claim of easement of necessity also does not arise in view of the fact that the plaint A schedule property was not severed from the property commonly owned by the landlord. Not only that the A schedule property is S.A.No.565/2001 3 abutting road mentioned above. It is also not a case where the plaintiff sets up title in himself over the way nor does he say that it was a pathway expressly proved, to say that it is covered by an express grant. There is no case of implied grant as well. The pleadings so as to sustain a claim of pathway by prescription are also conspicuously absent. There is no evidence also on that point. What have been stated above is sufficient to non suit the appellant.
4. It is vehemently argued by the learned counsel for the appellant that the document which has been now produced, which is of the year 1953 (Document No.1/9/83 of 1953) would show that the western boundary of the A schedule property was "Kayyittala vazhi". The learned counsel for the respondents would submit that the courts below have already considered about this "Kayyittala vazhi" as the way which was then having a width of one dannu. That does not form part of the property of the plaintiff's predecessor. Presently the width of the pathway is 9 feet. The learned counsel for the appellant would submit that the commissioner could see a gate which was opening to B schedule pathway from A schedule property. But from the S.A.No.565/2001 4 Commissioner's report and evidence it could be seen that the compound wall which was separating A schedule property from the B schedule way was demolished or removed just prior to the suit and a gate was put up there which itself would scuttle the plea raised by the appellants that he had been using the B schedule way for several years. Since A schedule property is abutting the road on the south, there is absolutely no necessity to use the B schedule pathway to reach plaint A schedule property.
5. It was contended during trial that the B schedule pathway is the public pathway leading to "Kalipadam" which is far away from the B schedule pathway. The appellant contended that he has got property in "Kalipadam". That property is not scheduled in the plaint. The lie and position of the alleged pathway which was leading to that "Kalipadam" property was not shown also. What was attempted to be established during trial was not the case pleaded. In view of the factors mentioned above, that plea cannot be countenanced now.
6. The following are the questions of law seen stated in the appeal memorandum:
S.A.No.565/2001 5
a. When the defendants could not produce any evidence to show that they are paying basic tax to B schedule way, will not the way be considered as Govt. property in view of Section 3 of the Land Conservancy Act ?
b. When old revenue records like Ext.A5 and A7 show that B schedule is puramboke property, can it be changed after half a century, under the guise of correcting re-survey records ?
c. When correction of re-survey records is resorted to, should not there be notice given to neighbouring property owners ? If no such notice was given can such correction has any legal sanctity ?
d. When it has come in evidence that B schedule had been in use from time immemorial by the public to reach the paddy field north of the B schedule way, will it not make even a private way as public way by long user by the public ?
e. From the evidence adduced in the case, were the courts below correct to conclude that the plaintiff was not using the B schedule way to take goods to item No.2 of plaint A schedule ?
f. When the courts have found that the defendants attempted to put up a gate at the entrance of the B schedule way just before the filing of the suit, is it not an indication that the way had been used as a public way ?
g. Were the courts below correct in refusing the injunction prayed for ?S.A.No.565/2001 6
7. With regard to the substantial question Nos.(a) and
(b) are concerned, since it is the case of the plaintiff that the B schedule pathway is the pathway commonly used by the plaintiff and the defendants, it is not necessary for the defendants to prove as to the nature of the right they claimed over the pathway. Therefore, these two questions are not germane for consideration and as such these questions are not substantial questions of law.
8. With regard to question No.(c), the evidence would show that the survey authorities had realised the mistake and subsequently they corrected the entry in the survey records. Not only that when the case set up by the appellant is with respect to the B schedule way stating that it was one which was in existence in 1954 and prior to that and when no right such could be claimed by the plaintiff over such a pathway, the entry originally made by the Re-Survey authority behind the back of the defendants and the subsequent correction made are also not of much consequence. So far as questions (d) to (g) are concerned, it has already been found that the courts below have concurrently found that the case pleaded by the plaintiff could S.A.No.565/2001 7 not be substantiated and what is attempted to be proved is not pleaded. The courts below have analysed the pleadings and evidence correctly and have come to a right conclusion that the plaintiff is not entitled to the reliefs sought for.
In the result this second appeal is dismissed.
Sd/-
N.K.BALAKRISHNAN, JUDGE das // True copy // PA to Judge