High Court of KeralaSingle Judge2020-01-30Appeals allowed in part; decree modified; no co...

Philomina Thomas v. N.T. KuriaKose (RSA Nos. 1122/2009 (A) & 1123/2009)

Case / Petition Number:RSA No. 1122/2009 (A) & RSA No. 1123/2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2020-01-30
Court Decision / Holding: Appeals allowed in part. The decree in OS 99/2006 is modified to restrain the defendants from constructing any new way in continuation of item No.2; the declaration in OS 101/2006 is set aside; injunction is granted only for the yellow shaded portion of the way (item No.3 in OS 101/2006 and item No.2 in the leading case) from E to W as shown in Ext.C2(a). Ext.C2(a) will form part of the decree. No costs.
Final Disposition: Appeals allowed in part; decree modified; no costs.

Parties to the Case

Appellants / Petitioners

Philomina Thomas
George T. Mulloor
Renuka Thomas

Respondents

N.T. KuriaKose
Philip Thomas
Bobab T. Mulloor
Scaria Thomas
Kuriakoose
Boban T. Mulloor

Legal Representation & Advocates

Counsels for Petitioners

• M. Narendra Kumar

Counsels for Respondents

• G.S. Reghunath
• Sunil Cyriac

Case Synopsis & Summary

This Regular Second Appeal arises from two connected suits OS 99/2006 and OS 101/2006, both heard together in the Sub Court, Pala, with the plaintiffs seeking a prohibitory injunction against constructing a new way in continuation of item No.2, and to restrain removal of a fence across the relevant passage, while the other suit sought a declaration of public right over the same way and an injunction not to obstruct its user. The Trial Court dismissed both suits; on appeal the decrees were aligned with the plaintiffs in the connected suit. The High Court clarified that the courts below erred by treating the way as a public road under Section 234 of the Panchayath Raj Act, and by relying on Thomman v. Kuriako. It held that mere public user does not create a public right; such a right accrues only when the way is maintained by a local authority, not through private usage. The plan Ext.C2(a) located the way largely within the defendants’ properties (sy Nos. 42/3, 42/4, 43/1), with only a small triangular portion in 43/1. The court found that the defendants possess an exclusive right of way to their properties and that the path through the yellow shaded area constitutes part of a private way. The appeals are allowed in part and the decrees modified accordingly; there is no cost. Ext.C2(a) will form part of the decree, and the injunctions are limited to the yellow shaded segment from E to W.

Provisions of Law Cited

Section 234 of the Panchayath Raj ActOrder 1 Rule 8 CPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the way in question is not a public road but lies largely within private lands; the relief sought was framed as protection of their private rights and prohibition of new public-like access by the other party. They relied on the statutory interpretation of Section 234 and argued that mere public user does not convert a private way into a public road; the plan Ext.C2(a) showed the private nature of the route and the triangular public segment did not establish a publicly maintained path; the lower courts failed to appreciate the statutory distinction between a public road maintained by a local authority and a private way.

Contentions of Respondents

The respondents urged that the way is in effect a public road by virtue of user and maintenance considerations under Section 234; they relied on Thomman v. Kuriako (1988 (1) KLT 361) to argue that the public right can arise where the path is maintained or recognized by local authorities. They argued that the route, though partly on private land, functions as a public passage and is accessible by the general public; the plan Ext.C2(a) was cited to show a continuous path that supports public access.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Thomman v. Kuriako	1988(1) KLT 361	Mentioned Only	Cited in the context of Section 234 and public right, but the court does not adopt it as a binding ruling; it distinguishes the present case on its own interpretation of public rights and maintenance by authorities.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941** ## **RSA.No.1122 OF 2009(A)** **AGAINST THE JUDGMENT AND DECREE IN AS 71/2008 DATED 29-09-2009 OF SUB COURT, PALA** **AGAINST THE JUDGMENT AND DECREE IN OS 101/2006 DATED 25-03-2008 OF MUNSIFF COURT, PALA** ## **APPELLANTS/ APPELLANTS/DEFENDANTS 1,3 AND 4:** **PHILOMINA THOMAS, AGED 50 YEARS, 1 W/O.LATE THOMAS, MULLOOR (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE, KADAPLAMATTOM PANCHAYAT, KIDANGOOR.P.O.** **GEORGE T.MULLOOR, AGED 24 YEARS, 2 S/O.THOMAS, MULLOOR (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE, KADAPLAMATTOM PANCHAYAT, KIDANGOOR.P.O. RENUKA THOMAS, AGED 20 YEARS, 3 D/O.THOMAS, MULLOOR (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE, KADAPLAMATTOM PANCHAYAT, KIDANGOOR.P.O.** **BY ADV. SRI.M.NARENDRA KUMAR** ## **RESPONDENTS/ RESPONDENTS/ PLALINTIFFS AND 2ND DEFENDANT:** **N.T.KURIAKOSE, AGED 74 YEARS, 1 S/O.THOMMAN, RESIDING AT ADUMAKKEEL (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE.** **PHILIP THOMAS, AGED 52 YEARS 2 S/O.THOMAS, NELLIKKUNNEL (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE.** RSA.1122/2009 & RSA.1123/2009 2 **3 BOBAB T.MULLOOR, AGED 28 YEARS, S/O.THOMAS OF MULLOOR (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE, KADAPLAMATTOM PANCHAYAT, KIDANGOOR P.O., REP.BY PHILOMINA THOMAS OF -DO-DO-** **R2 BY ADV. SRI.G.S.REGHUNATH R1 &R2 BY ADV. SRI.SUNIL CYRIAC** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2020, ALONG WITH RSA.1123/2009(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941** ## **RSA.No.1123 OF 2009** **AGAINST THE JUDGMENT AND DECREE IN AS 70/2008 DATED 29-09-2009 OF SUB COURT, PALA** **AGAINST THE JUDGMENT AND DECREE IN OS 99/2006 DATED 25-03-2008 OF MUNSIFF COURT, PALA** ## **APPELLANTS/APPELLANTS/ PLAINTIFFS 1,3 AND 4:** **1 PHILOMINA THOMAS, AGED 50 YEARS, W/O.LATE THOMAS, MULLOOR (H) PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE, KADAPLAMATTOM PANCHAYAT, KIDANGOOR P.O.** **2 GEORGE T.MULLOOR, AGED 24 YEARS,** **S/O.THOMAS, MULLOOR (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE, KADAPLAMATTOM PANCHAYAT, KIDANGOOR P.O.** - **3 RENUKA THOMAS, AGED 20 YEARS,** **D/O.THOMAS, MULLOR (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE, KADAPLAMATTOM PANCHAYAT, KIDANGOOR P.O.** **BY ADV. SRI.M.NARENDRA KUMAR** ## **RESPONDENTS/ RESPONDENTS/ DEFENDANTS AND 2ND PLAINTIFF:** **1 SCARIA THOMAS, AGED 65 YEARS, MENON VEETTIL, PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE.** - **2 KURIAKOSE, S/O.THOMMAN,** **AGED 65 YEARS, ADUMAKKEEL (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE.** RSA.1122/2009 & RSA.1123/2009 4 **3 BOBAN T. MULLOOR, AGED 28 YEARS** **S/O.THOMAS OF MULLOOR (H), PARIYARAMANGALAM KARA, KIDANGOOR VILLAGE,, KADAPLAMATTOM PANCHAYAT, KIDANGOOR P.O., REP.BY PHILOMINA THOMAS, OF -DO-DO-** **R1 BY ADV. SRI.G.S.REGHUNATH** **R1 &R2 BY ADV. SRI.SUNIL CYRIAC** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2020, ALONG WITH RSA.1122/2009(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.1122/2009 & RSA.1123/2009 5 ## **JUDGMENT** The suit in OS No.99/2006 is for a decree of prohibitory injunction not to construct any way in continuation to plaint schedule item No.2, not to remove the obstructing fence constructed by the plaintiffs across the way and other reliefs, dismissed by the Trial Court. In appeal it was confirmed, against which the plaintiffs came up with this appeal in RSA.1123/2009. 2. The other suit in OS.No.101/06 is by the respondents herein for a declaration of public right over the said way and for injunction not to obstruct its user. It was decreed by both the courts below, against which the defendants therein came up with the connected appeal in RSA.1122/2009. 3. The connected suit was filed in a representative capacity representing the general public under Order 1 Rule 8 CPC. Two suits tried jointly by the lower court by treating OS.99/2006 as leading case. As such, the parties herein below RSA.1122/2009 & RSA.1123/2009 6 referred in their status in the leading case. The dispute is pertaining to item No.2 way scheduled in the leading case which is the item No.3 in the connected suit. The commissioner, who prepared Ext.C2(a) plan, located the way with yellow shade. Admittedly, the property comprised in Sy.nos. 42/3,42/4 and 43/1 belonged to the defendants. The way was located through the property comprised in Sy.No.43/2 which is the property of the plaintiffs in the leading case. The entire extent of the way is passing through the property comprised in Sy.No.43/2 except a small negligible triangular portion out of Sy.No 43/1, one of the property belonged to the defendants. The fact that a triangular portion though negligible in extent form part of the way in existence would show the right of the defendants to use the said way as means of access to the property belonged to the defendants comprised in Sy.No.42/3, 42/4 and 43/1. The properties belonged to the defendants comprised in Sy.No.42/3, 42/4 and 43/1 lying adjoining to the said way starting from the RSA.1122/2009 & RSA.1123/2009 7 eastern' E' point and ends in 'W' point located by the commissioner in the plan prepared. As such, the defendants will have the right of way from 'E' point upto 'W' point located in the said plan as some portion of their property - the triangular portion out of Sy.No.43/1 - lying as part of the said way. The further extension of the said way taking a deviation and passing through somewhat middle of the property of the plaintiffs and abruptly ends in the middle portion of the plaintiffs would show that it is exclusively provided through their property and that it has no alignment with any other property owned by any other person. So the said extension of way from point 'W' can only be considered as the exclusive part of way owned and possessed by the plaintiffs as it is passing through the middle of their property and abruptly ends in the middle portion and the same would constitute a substantial question of law. 4. Both the courts below proceeded on a wrong impression that the said way constitute a public way, RSA.1122/2009 & RSA.1123/2009 8 for which the learned counsel for the respondent relied on Section 234 of the Panchayath Raj Act and also the decision rendered in **Thomman v. Kuriako** **(1988(1) KLT 361)** . What is dealt with under Section 234 of the Panchayath Raj Act is the right of panchayath to maintain a public way. The expression 'right' incorporated in the provision should be understood as a public right. A mere user of a way by the public or premises by the public alone will not constitute any public right. It will not change the character of the property. But when the way is maintained by the local authority, the Panchayath or the Municipality as the case may be, it would acquire the character of the way maintained by the local authority by which the public can use it as of right, but it cannot be extended to a private way not maintained by the local authority and the same would constitute yet another substantial question of law. Hence the decree granted by both the courts below requires modifications. The suit in O.S.No.99/2006 is decreed in part granting a decree RSA.1122/2009 & RSA.1123/2009 9 restraining the defendants therein from constructing any new way in continuation of item No.2 property. The declaration granted by both the courts below in the connected suit in O.S.No,101/2006 is hereby set aside. The permanent injunction granted in that suit is modified granting injunction to a portion of yellow shaded way (item No.3 in O.S.No.101/2006 and item No.2 in the leading case) commencing from letter 'E' on the east upto the letter 'W' on the west as shown in Ext.C2 (a) plan. Ext.C2(a) plan will form part of the decree. The appeals are allowed in part accordingly. No costs. ## **Sd/-** **P.SOMARAJAN JUDGE** SPV //TRUE COPY// PA TO JUDGE