The plaintiff in O.S. No. 94 of 2006 on the file of the Sub Court, Manjeri is the appellant in this Second Appeal. The said suit was one for a declaration that the plaint A schedule properties are exclusively owned by the plaintiff and for a consequential prohibitory injunction restraining defendants 2 to 4 from using the disputed way alleged to be the part and parcel of the plaint A schedule properties and also from preventing the plaintiff from soling and tarring the disputed way.

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According to the plaintiff, it is a charitable trust by name Good Shephered Educational and Charitable Trust and the road in question is a private road belonging to and passing through the plaint A schedule property consisting of 13 items constituting a school and its compound. The defendant would contend that the plaintiff has no title or exclusive possession over the disputed road which is a road vested in the Chungathara Panchayat, i.e., the 5^th defendant.

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R.S.A. No. 110/2009

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: 2 :

¶28

The trial court dismissed the suit holding that the plaintiff has not proved the title and exclusive possession over

¶29

the road in question. On appeal by the plaintiff as A.S. No. 48 of 2007 before the District Court, Manjeri, the learned Additional District Judge as per judgment dated 11.04.2008, set aside the judgment and decree passed by the trial court and has remanded the case to the trial court giving an opportunity to the plaintiff to identify the property and to prove whether the disputed way forms part of the plaint A schedule property. It is the said remand order which is assailed in this Second Appeal by the plaintiff.

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The following are the questions of law formulated in the memorandum of Second Appeal:-

¶31

Whether the courts below were justified in placing the burden of proving that plaint -B schedule property was not a public road vested and maintained by the defendant panchayat on the plaintiff/appellant?

¶32

In the light of the title deeds, certified survey plans and the tax records (BTR) = Basic Tax Register produced by the plaintiff/appellant proving his title over plaint schedule properties and in the absence of any evidence from the defendants, was the court below justified in dismissing the claim of the plaintiff on the ground that he had failed to disprove that the plaint 'B' schedule property is a public road vested and maintained by the panchayat?

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R.S.A. No. 110/2009

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: 3 :

¶35

Were the courts below justified in ignoring the statutory document viz. Surveyor plan which indicates that both in 1977 as also in 1999 there is no public road or purambokku in the property contrary to the claim of the panchayat that there was a public road therein since time immemorial maintained by the Panchayat?

¶36

In the absence of any such evidence from the side of the panchayat ought not the courts below have decreed the suit in favour of the plaintiff/appellant?

¶37

Whether the defendants can be stated to have denied the title of the plaintiff over the plaint schedule properties were in the pleadings the plaintiff has been merely “put to strict proof with respect to the title” when this High Court has held in 1960 KLT 348 and 1972 KLT 74 etc. that the said pleadings would amount to an admission of the facts stated in the plaint?

¶38

Was the lower court justified in not considering Ext.28 as also the document of title of Rev. C. Yohannan which clearly indicate that there is no public road in the property and that the road constructed by the trust leads to the south up to the premises of the school?

¶39

I heard the learned counsel appearing for the

¶40

appellant/plaintiff. According to the learned counsel, the lower appellate court instead of remanding the case giving an opportunity to the plaintiff to prove his case and thereby casting the burden on the plaintiff alone, should have made an open remand casting the burden on the defendant also to prove their case.

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R.S.A. No. 110/2009

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: 4 :

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I cannot agree. The plaintiff has come to court with the definite allegation that the disputed road is within the 13 items of properties described in the plaint A schedule and the plaintiff has exclusive possession over the same. The suit being one for declaration and consequential injunction, the plaintiff will have to stand or fall on the strength of his case. He cannot seek to demolish the defence case and thereby hope to win his case. No doubt, while evaluating the case of the plaintiff, the court will have to incidentally consider the defence set up by the defendants as well. But, that is not to say that it is for the defendants to prove the case set up by them and thereby demolish the plaintiff's case. The defendants can not only try to demolish the plaintiff's case by assailing the evidence adduced by the plaintiff, they can also adduce rebuttal evidence and establish that going by the preponderance of probabilities, the case set up by the defendants is true and more probable. The lower appellate court has virtually shown an indulgence by giving the plaintiff an opportunity to substantiate its case. The question as to whether the road in question is covered by the title deeds of

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R.S.A. No. 110/2009

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: 5 :

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the plaintiff, can be easily and demonstrably proved by the plaintiff by taking out a survey commission. I, therefore, do not find any good ground for interference with the remand order passed by the lower appellate court. No question of law, much less any substantial question of law arises for consideration in this Second Appeal which is accordingly dismissed in limine. It is needless to observe that the trial court will have to decide the suit uninfluenced by the observations both in the original judgment of the trial court as well as in the remand order.

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Dated this the 3^rd day of February, 2009.

¶48

V. RAMKUMAR, JUDGE.

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R.S.A. No. 110/2009 : 6 :

Good Shephered Educational & Charitable v. T.v.Varghese

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