Dismissed

Shyju Antony v. Nithin Babu and Others

Kerala HC5 Feb 2016RSA/557/2011

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Kerala dismissed the challenge to the lower courts' judgment which nonsuited the plaintiff. The plaintiff sought to establish a public road and injunction against defendants enclosing it, but failed to prove the road's extent beyond the defendants' property boundaries.

What did the court decide?

The second appeal was dismissed, clarifying that the public road extends only up to the north-western corner of the defendants' property.

Shyju Antony Vs Nithin Babu and Others — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 14TH DAY OF NOVEMBER 2012/23RD KARTHIKA 1934

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RSA.No. 557 of 2011 (G)

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--------------------------------A.S.NO.32/2010 of III ADDITIONAL SUB COURT, ERNAKULAM OS.NO.1312/2005 of II ADDITIONAL MUNSIFF COURT, ERNAKULAM

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SECOND APPELLANT/APPELLANT/PLAINTIFF:

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SHYJU ANTONY, S/O.ANTONY, AGED 45 YEARS, RESIDING AT 25/3-B,KOROTH HOUSE, GAS AGENCY ROAD, GANDHIPURAM, TRIPUNITHURA.

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BY ADVS.SRI.S.SREEKUMAR

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SRI.P.MARTIN JOSE SRI.P.PRIJITH

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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1. NITHIN BABU, S/O.BALAGOPALAN, AGED 30, CANAL VIEW, THEKKUMBHAGAM VILLAGE, THRIPUNITHURA P.O.

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2. AMAL BABU, S/O.BALAGOPALAN, AGED 28, CANAL VEIW, THEKKUMBHAGAM VILLAGE, THRIPUNITHURA P.O.

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3. AMITH BABU, S/O.BALAGOPALAN, AGED 28, CANAL VEIW, THEKKUMBHAGAM VILLAGE THRIPUNITHURA P.O.

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R1-R3 BY ADV. SRI.VIVEK VARGHESE P.J. BY ADV. SRI.VARUGHESE M EASO

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MJL

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P.B.SURESH KUMAR, J.

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R.S.A. No.557 of 2011

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Dated 5^th February, 2016.

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J U D G M E N T

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The plaintiff in a suit for declaration and injunction is the appellant in this second appeal.

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The plaint A schedule property belongs to the

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plaintiff. The plaint B schedule property is described in the plaint as a pathway having a length of about 127 meters and a width of 18 links running east-west through the southern side of the plaint A schedule property commencing from Tripunithura - Puthiyakavu road and ending in the property of the defendants. It is alleged by the plaintiff that the property of the defendants lies on the east and south of the plaint B schedule pathway. The case of the plaintiff is that the plant B schedule pathway is a public road and that the defendants are attempting to annex a portion of the plaint B schedule public road to their property. The plaintiff has, therefore, claimed a decree declaring that the

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RSA No.557 of 2011

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plaint B schedule pathway is a public road and that the plaintiff has a right to use the same as a public road for ingress and egress to the plaint A schedule property. He also sought a decree of permanent prohibitory injunction restraining the defendants from putting up compound wall or gate enclosing any portion of the plaint B schedule public road or causing obstructions to the user of the plaint B schedule public road. The defendants resisted the suit contending that the description of the road in the plaint B schedule is incorrect. They also contended that the road commencing from Tripunithura - Puthiyakavu road towards east as referred to by the plaintiff is not a public road. According to the defendants, the said road terminates at the north-western corner of their property and that the attempt of the plaintiff in instituting the suit is to establish that a portion of the property of the defendants is also part of the said road. The trial court found that though the road commencing from Tripunithura - Puthiyakavu road towards east as referred to by the plaintiff is a public road, its length has not been established by the plaintiff. Consequently, the suit was

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RSA No.557 of 2011

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dismissed. Though the plaintiff took up the matter in appeal, the appellate court confirmed the decision of the trial court. The plaintiff, who is aggrieved by the decisions of the courts below, has thus come up in this second appeal.

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As per the judgment dated 14.11.2012, this Court

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had dismissed the second appeal at the admission stage clarifying that the road commencing from Tripunithura - Puthiyakavu road towards east upto a length of 108 meters is a public road. However, on 4.7.2014, the judgment dated 14.11.2012 was recalled by this Court as per the order in R.P.No.108 of 2013. Thus, this second appeal has come up again for admission.

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Heard the learned Senior Counsel for the appellant as also the learned Senior Counsel for the respondents.

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The question arising for consideration in this second appeal is as to whether the plaintiff has established the existence of the public road as described in the plaint B schedule. The length of the road referred to in the plaint B

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RSA No.557 of 2011

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schedule is shown therein as approximately 127 meters. The plaintiff had earlier filed O.P.No.32690 of 2002 before this Court seeking directions to the Municipality concerned to tar the said road and pursuant to the order passed by this Court in the said writ petition, the Municipality commenced the tarring work of the road. When the tarring work progressed, the defendants objected to the tarring work, disputing the length of the road and consequently the Municipality abandoned the work midway. It is at that point of time, the suit was filed seeking the reliefs referred to above. The Advocate Commissioner appointed in the suit reported that the tarring work in the road was over upto a length of 108 meters from Tripunithura - Puthiyakavu road and the metalling work has been done to a further length of 19.3 meters from the point where the tarring work was completed. The Advocate Commissioner also reported that while the defendants maintain the stand that the portion where the metalling work was done is part of their property, the plaintiff maintain the stand that the said portion is part of the public road referred to in schedule B to the plaint.

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RSA No.557 of 2011

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The sketch appended to the report of the Advocate Commissioner would indicate that the metalled portion referred to by the Commissioner is the portion which extends beyond the north western corner of the property of the defendants towards east. In so far as the defendants do not admit the existence of the public road beyond the north western corner of their property, it was obligatory for the plaintiff to establish that the public road referred to by him extends beyond the north western corner of the property of the defendants. There is absolutely no evidence on record to indicate the length of the public road. Merely for the reason that the local authority has metalled a portion of the property of the defendants, it cannot be said that the same would become part of the public road. The road register maintained by the local authority would have shown some light as to the length of the public road, but the plaintiff has not taken any steps to cause production of the said register before the court. Further, the specific case of the plaintiff is that the public road referred to in schedule B to the plaint lies on the south of the plaint A schedule property

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RSA No.557 of 2011

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covered by Ext.A1 assignment deed. Ext.B1 is the prior document of the plaintiff. Ext.B1 does not indicate that there exists a road having a width of 18 links on the south of the property of the plaintiff. Going by the sketch prepared by the Advocate Commissioner, the western boundary of the plaint A schedule property lies far beyond west of the western boundary of the property of the defendants. It is beyond dispute that the public road referred to by the plaintiff in the plaint is a road having a width of 18 links. If such a road is not in existence on the south of the property covered by Ext.A1 sale deed in favour of the plaintiff, there is no chance at all for the said road to extend towards east beyond the north western corner of the property of the defendants. In the said circumstances, the courts below cannot be faulted for having non-suited the plaintiff. However, in so far as the specific case of the defendants is that the road extends only upto the north western corner of the property of the defendants, the said aspect can be clarified while dismissing the appeal.

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In the result, the second appeal is dismissed

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RSA No.557 of 2011

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clarifying that the public road referred to in schedule B to the plaint extends only upto the north western corner of the property of the defendants. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Shyju Antony v. Nithin Babu and Others

Case brief

What is this about?

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Shyju Antony v. Nithin Babu and Others

Case brief

What is this about?

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