Kerala High Court
Smt. Sheela vs State Of Kerala on 15 February, 2017
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938
Crl.Rev.Pet.No. 435 of 2016 ()
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(AGAINST THE ORDER/JUDGMENT IN CMP 3/2013 of SUB DVL.MAGISTRATE
COURT,PERINTHALMANNA )
REVISION PETITIONER(S)/2ND PETITIONER:
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SMT. SHEELA,
52 YEARS, D/O.MANI @ GEORGE (LATE),
PADIYARA HOUSE, ELAMKULAM VILLAGE,
CHERUKARA P.O, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT -679 340.
BY ADVS.SMT.LIJI KUTTAPPAN
SRI.P.C.GEORGEKUTTY
SRI.A.K.GOPALAN
RESPONDENT(S)/STATE/COUNTER PETITIONERS:
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1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. THE REVENUE DIVISIONAL OFFICER,
PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT,
PIN - 679 340.
3. ALBERT ANTO,
OVUNGAL HOUSE, KOTTAPPARAMBU,
CHERUKARA P.O, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT, PIN-679340.
4. ANTO SYMON,
OVUNGAL HOUSE, KOTTAPPARAMBU,
CHERUKARA P.O, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT, PIN-679340.
R4 BY ADV. SRI.C.DINESH
R BY PUBLIC PROSECUTOR SRI.RAMESH CHAND
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 09-02-2017, THE COURT ON 15/2/2017 PASSED THE FOLLOWING:
SUNIL THOMAS, J.
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Crl.R.P.No. 435 of 2016
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Dated this the 15thday of February, 2017
O R D E R
The revision petitioner is aggrieved by the order in CMP No.3/2013 of the Sub Divisional Magistrate,Perinthalmanna in a proceeding under Section 133 Cr.P.C.
2. The revision petitioner, who is the second petitioner in the CMP, along with around 40 persons submitted a petition dated 16/10/2012 before the Sub Collector,Perinthalmanna alleging that, their right of way along the western side of the 3rd and 4th counter petitioners' property in Sy.No.118/1 of Elamkulam village was obstructed by those counter petitioners. Pursuant to the issuance of the notice, proceedings under section 153 Cr.P.C.were initiated by SDM and report was called for from the village officer. On the basis of the report given by the village officer, a conditional order was passed as Annexure-II. The counter petitioner appeared and contested the proceedings. By the impugned order, the learned SDM concluded that there were materials in support of the denial of public right and consequently, stopped the further proceedings invoking section 137(2) Cr.P.C.,directing both sides to approach the competent authority to decide the question of the existence of public right. The finding of the court below is under challenge in this proceeding.
3. Heard both sides and examined the records.
Crl.R.P.No.435/2016 2
4. The revision petitioner and others claimed right over the three cents of way through which she claimed to proceed. Annexure -1 is the report of the village officer which discloses the existence of a three feet wide pathway on the western side of the property comprised in Sy.No.118/1. It was found by the village officer that, a granite wall was constructed,thereby the counter petitioners obstructed the way. On enquiry, it was revealed that,it was used as a way by the local people. It was also reported that three electric posts were erected on the way to draw electric line to the house of three named persons. It was also noticed that in document No.688/2008 in favour of one Jibbi and another person, the way was shown in the title deed. Another document, which was available before the SDM, was the report of the Tahsildar produced as Annexure -III. It was noticed that there was a way on the western side of the counter petitioners' property. It was stated that,the report was based on the physical inspection conducted in the presence of the ward member,village officer and the Panchayat president. It was found that, the counter petitioners had added that way to his plot. It was further noticed by the Tahsildar that, the way was used by the locals for proceeding to the main road. The Tahsildar further noticed that,the way was referred to in the title deed of neighbouring owners.
5. On the other hand, the counter petitioners 3 and 4 stated that, when the wife of 3rd counter petitioner (the revision Crl.R.P.No.435/2016 3 petitioner), her brothers and sisters partitioned their property comprised in Sy.No.406/2007,a three feet width way was laid for the use of traveling to the various plots so demarcated. When the counter petitioners and his wife were residing together, way was used by the wife to proceed to that plot. It was stated that, this way which is the subject matter of the partition deed,is now claimed to be a public way by the petitioner. In fact, the public way was on the northern side of the item Nos.1,2,3 & 5 properties in the above partition deed. Precisely,the contention of the contesting counter petitioners was that, the public way was different from the temporary way,which was provided by the partition deed for proceeding to their relatives' property. It has also come out in evidence that,the dispute has a colour of a matrimonial dispute between the husband and wife.
6. The available materials clearly show the existence of way. Necessarily, the question that narrows down is,whether the way was used by the public and whether it had attained the status of public way by constant user. Yet another crucial question, that arises for consideration, is whether the public way which was allegedly used by the public was different from the way which the counter petitioners had referred to. The available materials are in the form of Annexures I, II and the complaint submitted about 40 persons as Annexure-V. On the other hand, the learned SDM arrived at a different conclusion relying on the personal inspection Crl.R.P.No.435/2016 4 conducted by him on two occasions. The SDM concluded that, the revision petitioner herein was the wife of the respondent and they were separated due to family reasons. The way in existence leads to three houses including that of the revision petitioner's family. It was also found that, the counter petitioners have reliable evidence to support the denial of existence of public way. Ultimately,the court below concluded that,there were evidences for denial of public right.
7. Evidently the finding that there were evidences for denial of public right, pre supposes the existence of a way, though not used by the public. The learned SDM has not answered the existence of a well defined way,which was claimed by about 40 persons. Further,existence of three electric posts in that way which was used by three different persons out of which some are not related to the parties in dispute and the reference to the way in few title deeds were also not noticed by the learned SDM. It seems that no reason is given as to why Annexure-I has been declined by the authority, except a vague reasoning that there were materials to evidence denial of public right.
8. In the light of the above, it is clear that the matter requires fresh consideration on the basis of available materials. Consequently, I am of the view that the court below has not appreciated the available materials in its correct perspective. Hence,the impugned order is set aside and the matter is remanded Crl.R.P.No.435/2016 5 to the learned SDM to consider afresh,on the basis of the available materials, as to decide whether there is an identity of the way claimed by both sides and also to evaluate the grounds in support of denial of public right. This should be answered with reference to the report of the Tahsildar, the village officer as well as the existence of the electric posts also. The learned SDM shall decide it on the basis of the available materials and shall pass appropriate orders after affording a reasonable opportunity to both sides to argue the matter. Both sides shall appear before the SDM on 10/3/2017.
The revision is accordingly allowed.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.
Crl.R.P.No.435/2016 6