Kunjiraman Nair and Others v. Sujesh and Swapna T.

R.S.A.No.98/2024 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ``` RSA NO. 98 OF 2024 ``` ``` AGAINST THE DECREE & JUDGMENT DATED 18.09.2023 IN OS NO.154 OF 2021 OF MUNSIFF COURT, QUILANDY ARISING OUT OF THE DECREE AND JUDGMENT DATED 09.01.2024 IN AS NO.30 OF 2023 OF SUB COURT, QUILANDY ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** - **`1 KUNJIRAMAN NAIR, AGED 77 YEARS S/O. NARAYANAN NAIR, PANTHAPPALLI PARAMBU, KRISHNARPPANAM HOUSE, THUVVAKKODE P.O., CHEMANCHERY VILLAGE, THUVVAKKODE DESOM, KOYILANDY TALUK, KOZHIKODE, PIN – 673304.`** - **`2 MITHUN, AGED 31 YEARS, S/O. MADHAVAN NAIR, VADAKKE VALAPPIL HOUSE, THUVVAKKODE P.O., CHEMANCHERY VILLAGE, THUVVAKKODE DESOM, KOYILANDY TALUK, KOZHIKODE, PIN – 673304.`** - **`3 JANU, AGED 61 YEARS, W/O. CHANDANKUTTI, PULLATT HOUSE, THUVVAKKODE P.O., CHEMANCHERY VILLAGE, THUVVAKKODE DESOM, KOYILANDY TALUK, KOZHIKODE, PIN – 673304.`** ## **`BY SENIOR ADVOCATE SUMATHY DANDAPANI`** ## **`ADV MILLU DANDAPANI`** ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS:`** - **`1 SUJESH, AGED 47 YEARS S/O. RAGHAVAN NAIR, PANTHAPPALLI PARAMBU, KRISHNARPPANAM HOUSE, THUVVAKKODE P.O., CHEMANCHERY VILLAGE, THUVVAKKODE DESOM, KOYILANDY TALUK, KOZHIKODE, PIN - 673304`** R.S.A.No.98/2024 2 ``` 2SWAPNA T, AGED 37 YEARS, W/O. SUJESH, PANTHAPPALLI PARAMBU, KRISHNARPPANAM HOUSE, THUVVAKKODE P.O., CHEMANCHERY VILLAGE, THUVVAKKODE DESOM, KOYILANDY TALUK, KOZHIKODE, PIN – 673304. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2024, THE COURT ON 12.03.2024 DELIVERED THE FOLLOWING: ``` R.S.A.No.98/2024 3 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _R.S.A No.98 of 2024_ _================================ Dated this the 12th day of March, 2024_ Defendants in O.S.No.154/2021 on the files of Munsiff Court, Quilandy are the appellants herein and they assail decree and judgment in the above case dated 18.09.2023, confirmed as per judgment dated 09.01.2024 in A.S.No.30/2023 on the files of Sub Court, Koyilandy. The respondents herein are the plaintiffs in the above Suit. 2. Heard the learned Senior Counsel appearing for the appellants/defendants on admission. Perused the records of trial court as well as the appellate court. 3. I shall refer the parties in this Second Appeal as to their status before the trial court as `plaintiffs' and `defendants' hereinafter for convenience. 4. Plaintiffs filed the Suit seeking the relief of permanent R.S.A.No.98/2024 4 prohibitory injunction restraining the defendants from obstructing the use of plaint C schedule pathway by the plaintiffs and also mandatory injunction directing the defendants to remove soil and stones dumped in the plaint C schedule pathway for peaceful use and enjoyment of the same by the plaintiffs. According to the plaintiffs, plaint `A’ schedule property was originally belonged to the 2nd plaintiff’s father and as per settlement deed No.968/2012 of Chemanchery S.R.O, the father transferred the same in favour of the 1st and 2nd plaintiffs. Similarly, plaint B schedule is also property belonged to the father of the 2nd plaintiff and the same was given as gift to the 2nd plaintiff on the strength of document No.1354/2020 of Chemanchery S.R.O. Plaint `A’ and `B’ schedule properties are in absolute ownership and possession of the plaintiffs. The plaintiffs’ case further is that they are having right to use plaint `C’ schedule, the only pathway available to them starting from Sishumandiram road and ending at Chethilthazhe road, having a width of 8 feet and length of 150 meters. R.S.A.No.98/2024 5 5. Defendants entered and filed written appearance statement. According to them, plaintiffs are in possession of excess property not covered by their title deeds. Plaint `C’ schedule pathway never used by the plaintiffs and there was no way as stated as plaint `C’ schedule property. 1st defendant kept stones in the property to which he was entitled and the plaintiffs have no manner of right to demand removal of the same. If the same is a private way, plaintiffs could not get the way as described. The plaintiffs are also not entitled to right of easement by necessity as well as right of easement by prescription. 6. Trial court ventured the matter. PW1 was examined and Exts.A1 to A10 were marked on the side of the plaintiffs. Nobody was examined on the side of the defendants. Exts.C1 to C1(b) were marked. Finally the trial court granted reliefs in favour of the plaintiffs as under: _“Ex-consequenti, this Court decrees the suit against the defendants. The plaintiffs are entitled to permanent prohibitory injunction restraining the defendants from obstructing the use of C_ R.S.A.No.98/2024 6 _schedule pathway and a mandatory injunction directing the defendants from removing the obstruction in plaint C schedule pathway. The plaintiffs are also entitled to realise the costs of the suit from the defendants.”_ 7. Even though appeal filed challenging the trial court verdict, the appellate court dismissed the same and concurred the finding of the trial court. 8. While attempting to upset the concurrent verdicts, rendered by the trial court as well as the appellate court, it is argued by the learned counsel for the defendants that plaint `C’ schedule pathway having a width of 8 feet and a length of 100 feet is not in existence and the width of the way is only 4 feet. It is argued that the pathway is not included in the asset register of the Panchayat and thereby when the plaintiffs moved complaint No.1047/2017 before the Ombudsman, it was dismissed as per Ext.A6 relegating the parties to resort their dispute by civil remedy. It is also submitted by the learned counsel for the defendants that the defendants are ready to give 4 feet width pathway for the use of the plaintiffs. R.S.A.No.98/2024 7 9. In this case, the specific case of the plaintiffs is that there is a pathway in existence available to plaint `A’ and `B’ schedule properties and width of the way is 8 feet and length is 100 metre. Ext.C1 and C1(a) are the commission report and sketch obtained in this case. As per Ext.C1 series, the Commissioner reported that plaint C schedule way is having a width of 100 metre on the southern side starting from Sishumandiram road and the same reaches upto plaint A and B schedule properties and continues upto the western side of the property in possession of the 2nd defendant. It was reported by the Commissioner that at the time of inspection it was found that, in plaint `C’ schedule way, stones were unloaded with a view to obstruct passage of vehicles abutting the compound wall of Kunhiraman Nair. It was also reported that the passage of vehicles, in this area was obstructed and the width of the road in the obstructed area is 1.8 metre. Thus as per Ext.C1 series, the Commissioner located plaint `C’ schedule pathway as described in the plaint. Trial court relied on Ext.A5 R.S.A.No.98/2024 8 statement given by the mother of the 2nd defendant, wherein it is stated that `C’ schedule pathway starts from Sishumandiram Road and ends at Chethilthazhe road and the road was widened by surrender of properties by adjacent owners and the width of the road is 8 feet upto the western boundary of the property of Sri Sujesh, the 1st plaintiff. It is true that as per Ext.A5, the road is not included in the Panchayat Asset Register. According to PW1, plaint `C’ schedule is a public way. But the pleadings in the plaint could not justify this contention. As per the available records it appears that there is a road in existence having a width of 8 feet and 100 meter length available to plaint A and B schedule properties, and use of the same was partially obstructed by the 2nd defendant. 10. It is pertinent to note that the trial court as well as the first appellate court given emphasis to Ext.A4, a petition filed by Smt.Geetha, who is none other than the mother of the 2nd defendant, to the Secretary of Chemanchery Grama Panchayat, R.S.A.No.98/2024 9 stating that the plaint `C’ schedule public way to their property was obstructed by the 1st plaintiff. Though the defendants raised objection stating that the 1st defendant is not a party to Ext.A4 petition, in Ext.A4, plaint `C’ schedule is described as a public way. In view of this matter, it is evident from Exts.A4 and A5 that plaint `C’ schedule is a way widened by surrender of properties by the adjacent owners though the same is not shown in the Asset Register of the Panchayat. In this connection, Section 169 of the Panchayat Raj Act assumes significance and the same provides as under: ## _**169. [Vesting of Public roads in village panchayats. [Substituted by Act 13 of 1999.]**_ _(1) Notwithstanding anything contained in the Kerala Land Conservancy Act 1957 (8 of 1958), or in any other law for the time being in force, all public, roads other than those classified by the governments National Highway, State Highway or major district roads, bridges, culverts, ditches, dykes, fences on or beside the same protective devices and all adjacent land, not being private property appertaining thereto, within the panchayat area, i.e.-_ _(a) in the District Panchayats - All district roads other than major district road within the area of more than one block panchayat;_ R.S.A.No.98/2024 10 _(b) in the Block Panchayats - District roads and village roads other than major district roads within the area of more than one village panchayat comprised in a Block Panchayat;_ _(c) in the village Panchayats - other village roads, paths and lanes within the Village Panchayat area._ _Together with all pavements, stones and other materials and other things installed therein, all drains culverts made along side or under such roads and all works, materials and things appertaining thereto may be deemed as transferred to and vested absolutely in the panchayat area._ _(2) Subject to the provisions of this Act, all rights and liabilities of the Government in relation to the public roads and other properties, materials and things vested in the Panchayat under sub-section (1) or subsection (4) shall, from the date of such vesting, be the rights and liabilities of the Panchayat.]_ _(3) Notwithstanding anything contained in sub-section (1) or subsections (2) the Government may at any time by notification in the Gazette, exclude from the operation of this Act any such public road, sewer, drain, drainage work, tunnel or culvert and may also modify or cancel such notification and thereupon they shall revest in Government. Provided that, before issuing such a notification the Government shall consult the village panchayat concerned and give due regard to the objections, if any._ _(4) The government may, by notification in the Gazette, order the transfer to and vesting in, a village panchayat, of any public road or class of public roads in the village panchayat and thereupon such road or roads shall notwithstanding anything contained in sub-section (1), but subject to the other provisions of this Act, stand transferred to and vest in, such village panchayat._ _(5) It shall not be lawful for any persons to occupy any land which is transferred to and vested in a [_ _***] [Omitted by Act 13 of 1999.] panchayat under sub-section (1) or sub-section (4), whether a**_ R.S.A.No.98/2024 11 _**poramboke or not, without prior permission from the [** *] [Omitted by Act 13 of 1999.] panchayat concerned._ _Explanation. - For the removal of doubts its is clear by declared that in the erection of any wall, fence or building or the putting up of any over hanging structure of projection_ _(whether on a temporary or permanent basis) on or any land aforesaid shall be deemed to be occupation such land.”_ 11. In this connection, a Division Bench judgment of this Court reported in [2017 SCC OnLine Ker 7182 : 2015 (3) KHC 199 : 2015 (2) KLT 768 : ILR 2015 (2) Ker. 976], _**Mariam Beevi**_ ## _**v. Athirampuzha Grama Panchayat**_ assumes significance. In para.13 to 17 it is stated as under: _“13. The learned Single Judge after considering the rival contentions with reference to Section 2(xxxv) of the Panchayat Raj Act, which define the term ‘public road’, came to the conclusion that a public road as defined under the said clause of Section 2 of the Act is quite expansive. Therefore, any street, road,square, port, alley, passage, cart-tract, foot-path or riding path, over which the public have a right of way, even if it is not a thoroughfare, is a public road._ _14. The learned Single Judge, after referring to the provisions under Section 169 of the Panchayat Raj Act, which begins with a non obstante clause concluded that the expression ‘not being private property appertaining thereto’ in sub-section (1) of Section 169 exempts only private property adjacent to any public road, but not the very road, which always has an element public utility attached to it; be it private or public. Further, the_ R.S.A.No.98/2024 12 _road need not be thoroughfare and that the expression ‘Village roads, paths and lanes’ used in clause (c) of sub-section (1) of Section 169 does not specify whether they are private or public._ _15. After referring to the observation made by Tom Bingham in his book ‘the Rule of law’ (page 75, Penguin, 2011), the learned Single Judge observed that, if the pathway is within the confines of a house, however, sprawling it may be, whatever lies therein may be private in character and private in use. Once it is meant to connect somebody else's, thus becoming part of a net work of roads or paths, however short or insignificant its extent and reach may be, it is to subserve the public purpose of providing access to and fro._ _16. The learned Single Judge has also held that once a property assumes the character of a road or pathway having the potential of being a public utility, it ceases to have any exclusivity._ _17. The learned Single Judge has also noted that, if a piece of land is to be plotted out, it is the mandate of the Statute that proper roads and other amenities are provided. Just because the whole of the property once was private, it could not be said that it would bear the same character forever.”_ 12. On reading the above provision and the gist of the above decision, it has to be held that any street, road, square, port, alley, passage, cart-tract, foot-path or riding path, over which the R.S.A.No.98/2024 13 public have a right of way, even if it is not a thoroughfare, is a public road. If a pathway is within the confines of a house, however sprawling it may be,whatever lies therein may be private in character and private in use. Once it is meant to connect somebody else's, thus becoming part of a network of roads or paths, however short or insignificant its extent and reach may be, it is to sub-serve the public purpose of providing access to and fro. Once a property assumes the character, say, a road or a path, having the potential of being a public utility, it ceases to have any exclusivity, for the individual interest is to yield to the common good. Even though the judgment in _**Mariam Beevi**_ 's case ( _supra_ ) was assailed before the Apex Court, the Apex Court also dismissed the SLP. 13. In fact, the trial court as well as the appellate court rightly found that plaint `C’ is a way in usage and according to the mother of the 1[st] defendant, the same is a public way and the Panchayat also supported the same. Then Section 169 of the R.S.A.No.98/2024 14 Panchayat Raj Act would operate in this case. 14. It is emphatically clear that the plaintiffs have no other way than `C’ schedule and the defendants obstructed the same by dumping stones as reported by the Commissioner. Therefore, the trial court rightly granted decree and the appellate court confirmed the same. The said verdicts do not require any interference as there is no substantial question of law arises to admit and maintain this appeal. 15. In order to admit and maintain a Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 16. In this case, the learned counsel for the appellants failed to raise any substantial question of law warranting admission of the Second Appeals. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order_ R.S.A.No.98/2024 15 _under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 17. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, R.S.A.No.98/2024 16 be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 18. In the decision in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v. J. Kamala and**_ _**Others**_ reported in the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722.**_ 19. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], _**Government of Kerala v. Joseph**_ , it was held as under: R.S.A.No.98/2024 17 _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 20. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of R.S.A.No.98/2024 18 law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 21. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 22. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All the interim orders in this Second Appeal stand vacated and all pending Interlocutory Application stand dismissed. _Sd/-_ ## _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_