K. C. Mathew v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 RSA.No. 988 of 2007() --------------------AS.103/2003 of SUB COURT,KATTAPPANA OS.53/2001 of MUNSIFF COURT, PEERUMEDU .................... : APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------- K.C.MATHEW,S/O.CHACKO, KURISUMMOOTTIL HOUSE, MANNARKAYAM KARA KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: DEFENDANTS ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, IDUKKI. 2. DIVISIONAL FOREST OFFICER, KOTTAYAM. 3. FOREST RANGE OFFICER, ERUMELY. 4. DEPUTY FOREST RANGE OFFICER, MURINJAPUZHA. BY GOVERNMENT PLEADER SRI.L.G.SURESH BABU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2109/2007 IN RSA NO.988/2007 14.1.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge P.S. To Judge ## **M.SASIDHARAN NAMBIAR,J.** =========================== R.S.A. NO. 988 OF 2007 =========================== Dated this the 14th day of January,2008 ## JUDGMENT Plaintiff in O.S.53/2001 on the file of Munsiff Court, Peermade is the appellant. Defendants are the respondents. First respondent is the State and respondents 2 to 4 the officers of Forest Department. Suit was instituted seeking a decree for injunction. Appellant is claiming title and possession to item No.1 of the plaint schedule property under Ext.A1 sale deed dated 9.1.1998. According to appellant, item No.2 of the plaint schedule property having a width of 5 metre and a length of 400 metres is situated on the western side of item No.1 of plaint schedule property and he has been using the right of ingress and egress along it for the last 40 years and respondents have no manner of right or possession to the said property and they threatened to close down the road and they have no right to do so and therefore they 2 R.S.A.988/2007 are to be restrained by a permanent prohibitory injunction. The suit resisted by respondents contending that appellant has no right or possession to item No.2 of the plaint schedule property. It was contended that the road mentioned in the plaint is the fire line formed around the plantation of Kerala Forest Department in the year 1983 and the fire line is having a width of 5.2 metres and it is being cleared every year to keep off the fire in the forest and item No.2 is a part of the reserve forest and neither appellant nor anybody else has any manner of right to use the said fire line as a road and he is not entitled to the decree sought for. It was also contended that appellant caused damages to the tune of Rs.5000/by making improvements in the fire line and case O.R.11/98 of Erumely Forest Range was registered against appellant and he is not entitled to the decree sought for in respect of the forest property. 2. Learned Munsiff on the evidence of Pws.1 to R.S.A.988/2007 3 3, DW1, Exts.A1 to A4, Exts.C1,C1(a) dismissed the suit holding that appelant did not establish any right over item No.2 of the plaint schedule property and is not entitled to the decree sought for. Appellant challenged the decree and judgment before Sub Court, Kattappana in A.S.No.103/2003. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that appellant has specifically pleaded that item No.1 of the plaint schedule property belongs to him and item No.2 of the plaint schedule property is a road which is being used by the appellant for the last 40 years and it is not part of the forest land and respondents have no right over the property and respondents did not establish that plaint schedule property is part of the reserve forest and R.S.A.988/2007 4 therefore a decree for injunction should have been granted. Relying on the decision of a learned single Judge of this court (as His Lordship then was)in **Ramanunni Vaidyar v. Govindankutty Nair** **(1998(2) KLT 47)** learned counsel argued that even a person who has not acquired an inchohate right is entitled to institute a suit eventhough the inchohate right has not ripened into an easement by prescription and therefore the courts below should have granted the decree. 5. On hearing the learned counsel, I do not find any substantial question of law is involved in the ppeal. 6. Appellant has only title to item No.1 of the property under Ext.A1. Even appellant has no case that he has title to item No.2 of the plaint schedule property under Ext.A1. What was contended by appellant was that he has been using item No.2 being a road for the last 40 years and respondents have no right over the property and R.S.A.988/2007 5 therefore they are to be restrained by a permanent prohibitory injunction causing obstruction to the road or closing the road. The argument of the learned counsel is that respondent did not establish that item No.2 of the plaint schedule property is part of the reserve forest and therefore the decree sought for should have been granted. 7. Appellant has no case that item No.2 of the plaint schedule property is either a public road or a public way. He has no case that he has any right of way either by easement of prescription or necessity or quasi easement. His only case was that he has been using the road for the last 40 years and respondents have no right over the property and therefore they are to be restrained by the decree for injunction. It is also contended that item No.2 does not form part of the reserve forest. The specific case of respondent is that item No.2 is a fire way made by the forest authorities to prevent fire in the forest and it is R.S.A.988/2007 6 not a way or a road as claimed by appellant. Unless appellant establish that he has some right to use item No.2 of the plaint schedule property, he is not entitled to a decree for injunction as sought for. Though reliance was placed on Ramanunni's case (supra) the facts of the case has no application to the present case. Appellant has no case that though he has a right of easement by prescription because of the non expiry of the period provided under the Act, the right has not ripened to a right of easement by prescription. He is not claiming any such right which is to be preserved by decree for injunction as found by the learned single Judge in that case. On the facts appellant is not claiming any particular right over the plaint schedule property. In a suit of this nature it is not for the respondents to prove that item No.2 of the plaint schedule property forms part of the reserve forest. When appellant claim that it does not form part of the reserve forest, he did not establish the said right or claimed any R.S.A.988/2007 7 other right. Hence dismissal of the suit is perfectly correct. The appeal is dismissed in limine. The dismissal of the appeal will not prevent appellant from claiming any special right over the way, if he has such a right. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006