George v. Sisupalan and Das

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932** **SA.No. 224 of 1999(B)** **--------------------------** **AS.163/1994 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.38/1991 of MUNSIFF COURT,KAYAMKULAM** **....................** ## **APPELLANT(S):RESPONDENTS/DEFENDANTS** **----------------------------------------------------** **1. SISUPALAN, PALAMOOTTIL THARAYIL, KAPPIL MEKKUM MURI, KRISHNAPURAM VILLAGE, ALAPPUZHA DISTRICT.** **2. DAS, PALAMOOTTIL THARAYIL, KAPPIL MEKKUM MURI, KRISHNAPURAM VILLAGE, ALAPPUZHA DISTRICT.** **BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE** ## **RESPONDENT(S):APPELLANT/PLAINTIFF** **------------------------------------------------** **GEORGE, S/O. ABRAHAM, JIJI VILLA, KAPPIL MEKKUM MURI, KRISHNAPURAM VILLAGE, ALAPPUZHA DISTRICT.** ## **BY ADV. SRI.G.S.REGHUNATH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **ORDER ON C.M.P. NO.656/1999** ## **IN** ## **S.A. NO.224/1999** ## **DISMISSED** **18/01/2011** **SD/- P.BHAVADASAN, JUDGE** **/TRUE COPY/** **P.A. TO JUDGE** **svs** ## **P.BHAVADASAN, J. ----------------------------------** ## **S.A.No. 224 of 1999** ## **---------------------------------** ## **Dated this the 18[th] day of January, 2011** ## **JUDGMENT** The defendants in O.S.No.38/1991 before the Munsiff's Court Kayamkulam are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. It is not in dispute that the plaintiff is the absolute owner in possession of 31¼ cents of land in Survey Nos.9815/A and 9816/2 in Krishnapuram Village. According to the plaintiff, a portion of the property owned by the plaintiff is lying on the western side of the public road and the other portion is lying on the eastern side of the road. The plaintiff alleged that the defendants were trying to cut open a pathway through his property. On the basis of these allegations, the suit was laid. 3. Defendants resisted the suit. They denied the allegation of trespass and cutting of trees in the plaint schedule property. According to them, there already existed a pathway through the plaint schedule property. There are two roads, one on the western side and the other on the eastern side of the plaint schedule property. The existing road starts from the road on the **S.A.No. 224 of 1999** **2** west and ends at the road on the east. They therefore, contended that the plaintiff is not entitled to any relief. 4. Based on the above pleadings, necessary issues were raised by the trial court for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts. A1 and A2 from the side of the plaintiff. The defendants had DWs 1 and 2 examined and Ext.B1 marked. 5. On a consideration of the evidence available in the case, the trial court came to the conclusion that the case set up by the plaintiff is not true and there was no evidence to show that the defendants have committed any act, which would call for issuance of any mandatory injunction against them. Accordingly, the suit was dismissed. 6. The plaintiff went up in appeal as A.S.No.163/1994 before the Additional District Court-1, Mavelikara. The appellate court took the view that the plea of defendants being one involving a public pathway and not for a pathway exclusively for them that unless the plaintiff establishes dedication of such right, it was not possible to deny relief to plaintiff. Thus reversing the **S.A.No. 224 of 1999** **3** decree of the trial court, the decree was granted in favour of the plaintiff. The said judgment and decree are assailed in this appeal. ## 7. Notices have been issued on the following substantial questions of law: - (i). Whether the lower appellate court is justified in its finding that in the absence of a specific plea with regard to dedication of the plaint schedule properties by the plaintiff, the defendants cannot claim any right over the same, when dedication can be presumed in the facts and circumstances of the case. - (2). Whether the lower appellate court is justified in reversing the judgment and decree passed by the trial court. - (3). Whether the lower appellate court failed to consider Ext.A2 Commissioner's Report in its proper perspective. - (4). Is the lower appellate court justified in **S.A.No. 224 of 1999** **4** granting an order of injunction in the facts and circumstances of the case. 8. The learned counsel appearing for the appellant pointed out that the appellate court was not justified in interfering with the trial court judgment and decree. According to the learned counsel, the trial court had clearly found existence of a public way as on the date of the suit and found that the allegations in the plaint are false. It has also found that there was no evidence to show that objectionable acts had been committed by the defendants and declined mandatory injunction also. The lower appellate court was not justified in granting a mandatory injunction as prayed for without any evidence of the acts having been committed by the defendants. The learned counsel also drew the attention of this court to Ext.A2, which is the commissioner's report filed in the another suit, which will clearly show the existence of a public pathway through the northern side of the plaint schedule property as on the date of filing of the suit, used by the residents in the locality. These aspects have been **S.A.No. 224 of 1999** **5** omitted to be noticed by the lower appellate court and that has resulted in miscarriage of justice. 9. In reply, the learned counsel for the respondents pointed out that the lower appellate court had arrived at the right conclusions. The plea of the defendants, being one of public pathway, it was essential for them to establish dedication of land and that there was either expressed and implied dedication on the part of the plaintiff. There was no such evidence or plea. It was also pointed out by the learned counsel that the way in question is for the benefit of the plaintiff only. Finally relying the decision reported in **Narendra Gopal Vidyarthi v. Rajat Vidyarthi (2009(3) SCC 287** ), it was pointed out that no substantial question is involved in the appeal and the finding of the lower appellate court is one on facts and that this court may not interfere. 10. The dispute relates to a way. Going by the plaint, which is filed on 22.1.1991, the plaintiff alleged that on 12.01.1991, the defendants trespassed into the property of the plaintiff and cut down certain trees. The further allegation is that **S.A.No. 224 of 1999** **6** on 12.01.1991, the people of the locality converted the existing pathway into a gravelled road. Subsequently to the filing of the written statement, plaintiff has amended the plaint vide order in I.A 596/1992. That IA was allowed. Plaintiff claimed a mandatory injunction directing the defendants to restore the property to its original condition. 11. The defendants case is that they have not done the acts alleged against them and the pathway in question was being used by the people for a long time. 12. The main item of evidence adduced by the plaintiff is Ext.A2. That is a Commission Report prepared in O.S.No.35/1991. Ext.A2 gives sufficient data regarding the existence of a pathway through the plaint schedule property. Commissioner has given a detailed description of the pathway passing through different properties including that of the plaintiff. 13. It will be useful to refer to said report. It gives in detail narration of a way which starts from the road on the western side and which ends on the “Potty” road on the eastern side and passes through several properties including that of the plaintiff. **S.A.No. 224 of 1999** **7** The Commissioner's Report would show that the road in question was widened. The road exists beyond a water chall, paddy field and on either side of the road there are several residences, whose names have been mentioned in Ext.A2. The road finally running through the property of the plaintiff connect the road on east and west on the western side. The statement in Ext.A2 is the following: “ഈവഴ� ഇപ��ള ഉപപ��ഗത�ല ഇര�ക�നത��� ക�ണ�ന�. കമ�ഷണര റ�പ��ര�� തയ�റ�ക���ര�ക�പ!�ള ഒര� മ�ന� പ%�റ� അത� വഴ� വന�.” (This way is now being used. While the commissioner was preparing the report a Mini lorry came down the way). 14. Going by the plaint averments, the defendants have cut and removed certain trees on 12.1.1991. There is an amedment petition seen filed by the appellant on 21.03.1992. In the amendment application, what is stated is that after in violation of the interim order of injunction, the defendants on 23.11.1991 in the night, cut open a way through the plaint schedule property. Thus they got access to the road on the western side. Ext.A2, **S.A.No. 224 of 1999** **8** the document produced by the plaintiff himself, shows that the way was in existence as on the date of filing of the report ie, 02.02.1991. 15. The evidence of PW1 in chief examination states that the trespass by the defendants by violating the order of injunction as on 23.11.1991. He denies the existence of public way as alleged by the defendants. In cross-examination he says that road was laid through his property on 23.11.1991. He also says that he came to know about the acts of the defendants from one Yasodharan. 16. The said Yasodharan was examined as PW2. His evidence shows that he is an employee of PW1. Therefore, little credence can be given to his evidence. 17. True, the act committed in the property of the plaintiff cannot be justified. But going by the commissioner's report produced by the plaintiff, namely, Ext.A2, it is seen that as on the date of filing of the suit, the way was used by the Public. It is also true, as rightly pointed out by the learned counsel for respondent that nothing on record to establish dedication and if it **S.A.No. 224 of 1999** **9** is a public way, it would vest in the Panchayath also. There is absolutely no evidence to establish dedication and to prove that the way has been vested with the Panchayath. 18. Whatever that be, the way is not only being used by the plaintiff but also by several other persons of the locality. There is nothing to show that it was the defendants who cut and removed the trees. The allegation and the assertion at the time of evidence was that it was only the defendants who put up the new pathway. In fact, on carefully reading Ext.A2, it can be seen that it was the high handed actions of the several persons. So, there is want of proof to indicate that the alleged acts have been committed by the defendants. 19. In the light of Ext.A2, the document produced by the plaintiff in the suit, one fails to understand what was the purpose of granting a permanent prohibitory injunction against the defendants, especially when they were not shown responsible for the mischief and the way was being used by several persons in the locality. **S.A.No. 224 of 1999** **10** 20. These vital aspects have been omitted to be noticed by the appellate court, while the trial court considered these aspects in detail. The lower appellate court certainly ought to have taken note of those aspects and merely because there was no evidence adduced to prove any dedication by the plaintiff and relief should be granted against the defendants. Such a view cannot be accepted on the basis of evidence on record. In the result, this appeal is allowed, the judgment and decree directing the defendants to restore the pathway to the original position, of the lower appellate court is set aside. No order as to costs. ## **P.BHAVADASAN, JUDGE.** ln