Disposed

Paulose v. Roy Abraham

Kerala HC25 Jul 2018FAO (RO)/124/2017

Case brief

AI extract

What is this about?

Appellant appealed against a remand order of the lower appellate court in a suit concerning a permanent injunction over a public pathway allegedly passing through his property. The High Court upheld the remand but clarified that observations on the additional evidence should not bind the trial court, and directed that a pending suit against the Panchayat regarding the same issue be tried together.

What did the court decide?

The appeal was disposed of with directions to the trial court to try the case along with the pending suit against the Grama Panchayat and to consider the additional evidence.

Paulose Vs Roy Abraham — Landlord and Tenant | Kerala HC (2018)

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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 A.HARIPRASAD

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WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940

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FAO (RO).No. 124 of 2017

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AGAINST THE JUDGMENT AND DECREE DATED 15-03-2017 IN AS NO.22/2015 of

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SUB COURT, MUVATTUPUZHA AGAINST THE JUDGMENT AND DECREE DATED 24-07-2015 IN OS NO.160/2011 of MUNSIFF'S COURT,MUVATTUPUZHA

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APPELLANT/RESPONDENT IN A.S./PLAINTIFF IN O.S.

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PAULOSE AGED 66, S/O.AUGUSTY, PERUMATTATHIL HOUSE, EDAYAR KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK - 686 662.

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BY ADVS.SRI.P.B.KRISHNAN

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SRI.V.B.HARI NARAYANAN

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RESPONDENTS/RESPONDENTS IN AS/DEFENDANTS IN O.S.:

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ROY ABRAHAM, AGED 66, CHATHAMTHADATHIL HOUSE, PERUMATTATHIL HOUSE, EDAYAR KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA - 686 662. 2. BABU, AGED 57, S/O.JOSEPH, KUNNUMMEL HOUSE, EDAYAR KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA - 686 662.

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GEORGE,

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AGED 55, S/O.MANI, KUNNECKAMARIYIL HOUSE, EDAYAR KARA, KOOTHATTUKULAM VILLAGE,

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MUVATTUPUZHA - 686 662.

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JOY, AGED 69, S/O.ABRAHAM, NEERANAMALAYIL HOUSE, EDAYAR KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA - 686 662.

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JOSE, AGED 50, S/O.CHACKOCHAN, MALIKAYIL HOUSE, EDAYAR KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA - 686 662.

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FAO(RO) NO.124 OF 2017

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MATHAI, AGED 51, S/O.YOHANNAN, MALIKAYIL HOUSE, EDAYAR KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA - 686 662.

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R1 & R2 BY ADV. SRI.BABU PAUL

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 25-07-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.HARIPRASAD, J.

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F.A.O.(RO) No.124 of 2017

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Dated this the 25^th day of July, 2018

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JUDGMENT

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Heard the learned counsel for the appellant/plaintiff and the respondents/defendants.

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Aggrieved by the order of remand passed by the Sub Judge, Muvattupuzha in A.S.No.22 of 2015, the appellant has come up in this appeal.

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Appellant approached the court below with a suit for permanent prohibitory injunction, mandatory injunction and damages. Plaint A schedule property belongs to the appellant in ownership and he is in possession of the same. He acquired the property as per Ext.A8. Property lies with distinct boundaries and it is separated from neighbours' properties by a stone kayyala. A mud road commences from PiravomKoothattukulam public road and it goes towards south. It is used for ingress and egress to plaint A schedule property as well as Thalachira property. On the south of plaint A schedule property, land belonging to Kunnummel Joseph is situate. At present, it is possessed by the 2^nd defendant. Defendants attempted several times to cut open a pathway by

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FAO(RO) No.124 of 2017 2

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demolishing the northern and southern kayyalas of plaint A schedule property. Several litigations were fought between the parties and actions were initiated by the Revenue Divisional Officer. Criminal cases were also filed by the appellant. When the defendants demolished concrete pillars and kayyala to a length of 4 ft. on either side, the appellant/plaintiff approached the court below with the above suit.

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1^st defendant filed a written statement contending that the averments in the plaint that a public road ends at the northern side of plaint A schedule property is false. According to him, the mud road starting from Koothattukulam public road on the northern side runs towards south. It passes through the plaint A schedule property and ends at Maruthummood junction and further joins Edayar-Mutholapuram public road. The pathway has a length of about 1 k.m. and it is being used by public for vehicular traffic. Plaintiff has no right to get any relief.

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2^nd defendant filed a written statement contending that the plaint descriptions are incorrect. He also contended that there is a public pathway through the plaint property connecting two public roads.

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Trial court after considering Exts.A1 to A11 and C1 series and also the testimony of PWs 1 to 5 and DW1 decreed the suit in favour of the appellant/plaintiff.

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Defendants challenged the judgment and decree in appeal

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FAO(RO) No.124 of 2017 3

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before the lower appellate court. Learned Sub Judge remanded the case for a fresh consideration. Aggrieved by the order of remand, the appellant/plaintiff is in appeal.

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Crucial contention raised by the respondents is that a public pathway maintained by the Panchayat is running through the appellant's property. Learned counsel for the appellant contended that in the written statement filed by the 1^st defendant, there is no mention that the property has been vested in Koothattukulam Grama Panchayat. According to him, none of the averments in the written statement show that there was vesting of property in the Panchayat. Except a bland contention that the road was maintained by the Panchayat, there is no material to infer either the plaintiff had given the land under the Land Relinquishment Act, 1958 or the Panchayat had acquired the land or it had purchased the land. Since none of these aspects has been specifically pleaded, there is no point in remanding the matter to the trial court, contended the learned counsel for the appellant.

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Learned counsel for the respondents, relying on the additional document produced before the lower appellate court, contended that the asset register maintained by the Panchayat would show that from 1984 onwards the road was maintained at the expense of the Panchayat. Even if the asset register is taken into consideration, it must be established that

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FAO(RO) No.124 of 2017

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the Panchayat has a vested right to maintain the road and they accrued the right in a manner known to law.

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It is an admitted fact that O.S.No.390 of 2009 filed by the appellant is pending before the trial court in respect of the same pathway against Koothattukulam Grama Panchayat. Contentions raised in this suit and O.S.No.390 of 2009 are almost identical. Only on this reasoning I find a legal justification for the remand. However, observation by the court below that the additional document produced before it shall be accepted by the trial court is not proper. The lower appellate court should have accepted the additional evidence, if it was found necessary and should have remanded the case on the basis of the additional evidence so accepted. It may be a technical issue. But, the larger issue involved in the suit is regarding the right of defendants to claim a public pathway through the plaintiff's property, which is a subject matter in O.S.No.390 of 2009.

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After hearing the learned counsel on both sides, I find that the ultimate decision of remanding the case cannot be faulted. However, it is made clear that none of the observations in the remand judgment shall be looked into for a final decision of the disputes involved in the suits. It is also directed that O.S.No.390 of 2009 shall also be tried along with the suit involved in this case. Parties should be given full opportunity to adduce evidence. If the appellant files an application to allow him to prosecute this

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FAO(RO) No.124 of 2017

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suit as a representative suit under Order I Rule 8 of the Code of Civil Procedure, 1908, the court below shall consider the plea and pass appropriate orders. Parties are directed to appear before the court below on 14.08.2018. Court below shall dispose of the case within a period of six months from the date of appearance.

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Appeal is disposed with the above directions.

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All pending interlocutory applications will stand closed.

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A.HARIPRASAD, JUDGE.

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cks

Paulose v. Roy Abraham

Case brief

What is this about?

What did the court decide?

Paulose v. Roy Abraham

Case brief

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