In a second appeal challenging a suit for injunction, the Court rejected the appellant's contention that the disputed pathway is public. It held that mere show in resurvey records or public use does not convert private property to public without dedication.
The second appeal was dismissed as it had no merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 25TH DAY OF JANUARY 2016/5TH MAGHA, 1937
RSA.No. 1195 of 2015 ()
-----------------------(AGAINST THE JUDGMENT AND DECREE IN AS.NO. 65/2014 OF SUB COURT, MANJERI DATED 07-02-2015)
(AGAINST THE JUDGMENT AND DECREE IN OS.NO. 40/2007 OF MUNSIFF COURT, MANJERI DATED 30-03-2010)
APPELLANT/1ST RESPONDENT/1ST DEFENDANT:
P. SAFIYA, AGED 52 YEARS, W/O. CHERUNALAKATH MUHAMMED KOYA, CHUNGATHARA AMSOM DESOM, NILAMBUR TALUK-679 334.
BY ADV. SRI.M.KRISHNAKUMAR
RESPONDENT(S)/APPELLANTS & 2ND RESPONDENT/PLAINTIFFS & 2ND DEFENDANT:
1. JOLY MATHAI, AGED 49 YEARS,D/O. MATHAI, KALATHIL HOUSE, CHUNGATHARA AMSOM DESOM, NILAMBUR TALUK-679 334.
2. KADIYUMMA, AGED 54 YEARS,
3. V.P.UMMER, AGED 65 YEARS, S/O. KUNHAMMAD HAJI, VALIYAPARMBATH HOUSE, CHUNGATHARA AMSOM DESOM,
NILAMBUR TALUK-679 334.
4. RAHANA, AGED 32 YEARS, D/O. P.SAFIYA, CHUNGATHARA AMSOM DESOM, NILAMBUR TALUK-679 334.
R1 TO R3 BY ADV. SRI.R.RAJESH KORMATH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
P.B.SURESH KUMAR, J.
R.S.A.No.1195 of 2015
Dated this the 25th day of January, 2016
JUDGMENT
The first defendant in a suit for injunction is the
appellant in this second appeal.
The plaintiffs are some of the owners of the properties on the side of the plaint A schedule pathway. According to the plaintiffs, the plaint A schedule pathway is part of the property obtained by PW2 as per Ext.A1 assignment deed and that the same was set apart by him as a pathway for him and also for persons to whom he had sold portions of the property covered by the said assignment deed. On the west of the plaint A schedule pathway lies the KozhikodeOotty public road. On the east of the plaint A schedule
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pathway lies a Public Health Centre. The defendants own the property on the south of the Public Health Centre. According to the plaintiffs, the defendants have no right at all to use the plaint A schedule pathway for access to their property from the Kozhikode-Ootty public road. They have, therefore, claimed a decree restraining the defendants from using the plaint A schedule pathway. The defendants resisted the suit. According to them, the plaint A schedule pathway is a public pathway and that therefore, they are entitled to use the same. The trial court though dismissed the suit, the appellate court reversed the decision of the trial court and decreed the suit. The first defendant who is aggrieved by the decision of the appellate court has thus come up in this second appeal.
that the materials on record are sufficient to infer that the
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plaint A schedule pathway is a public pathway. Relying on Ext.B1 plan prepared at the time of resurvey and Ext.B2 copy of the Basic Tax Register in respect of the plaint A schedule pathway, the learned counsel for the appellant contended that the plaint A schedule pathway is a public pathway. He also relied on the finding rendered by the District Magistrate in a proceedings initiated under Section 133 of the Code of Criminal Procedure, that the plaint A schedule pathway is a public pathway, in support of his contention. In addition, the learned counsel for the appellant has placed reliance on the oral evidence tendered by some of the witnesses examined on his side, to the effect that the members of the general public are using the plaint A schedule pathway, to contend that the plaint A schedule property is a public pathway. It was also pointed out by the learned counsel for the appellant that PW2 himself has admitted in his evidence that in the resurvey records the disputed way is shown as a public pathway.
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R.S.A.No.1195 of 2015
to the title holder of the disputed property in Ext.B2 indicates that the disputed property was part of the registered holding of a private individual. If the disputed property was part of the registered holding of a private individual, it is for the defendants to establish that it became a public pathway by dedication. There is nothing on record to indicate that the disputed pathway has been dedicated by its owner either expressly or impliedly for the purpose of forming a public pathway. Ext .B2 , on which reliance is placed by the appellant, only recites that the disputed property was lying as a pathway at the time of resurvey. Merely for the reason that a portion of a private
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property is shown in the resurvey records as a pathway, it cannot be said that the same would become a public pathway automatically. Coming to the evidence tendered by PW2, it is clear that the admission made by PW2 is as to his understanding about the entry made by the resurvey authorities, and the defendants cannot claim that the disputed pathway is a public pathway on the basis of the said admission alone. Likewise, merely for the reason that the people around a private property are using a portion of the same for their access to their respective properties, it will not automatically become a public way. Coming to the proceedings initiated by the District Magistrate under Section 133 of the Code of Criminal Procedure, it is trite that the findings rendered as to the nature of the disputed property in such proceedings are only provisional and subject to the final adjudication by a civil court of competent jurisdiction. It is ultimately for the civil court to decide as to the nature of the disputed pathway.
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In the said circumstances, I do not find any merit in the second appeal and the same is accordingly dismissed.
All the interlocutory applications in the appeal are closed.
P.B.SURESH KUMAR, JUDGE.
smm
3 issues framed by the court
Whether the disputed pathway is a public pathway or remains part of private property.
Whether findings by District Magistrate under Section 133 CrPC are final or provisional.
Whether theCivil court has to finally decide the nature of the disputed pathway.
P. Safiya
Joly Mathai
Kadiyumma
V.P. Ummar
Rahana
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
