R.S.A.Nos.125 & 126 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 2ND DAY OF FEBRUARY 2016/13TH MAGHA, 1937** **RSA.No. 125 of 2014** **---------------------------------** **AGAINST THE JUDGMENT IN A.S.NO.181/2008 OF SUB COURT, CHENGANNUR** **AGAINST THE JUDGMENT IN O.S.NO.20/2006 OF MUNSIFF COURT, CHENGANNUR** **--------------------** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS :** **------------------------------------------------------------------** ## **1. DEVAYANI, AGED 65 YEARS,** **VATTAMUKADIYIL, VADAKKECHARUVIL VEEDU, PERINGALA MURI, MULAKKUZHA VILLAGE.** **2. V.J.AJAYAN, AGED 35 YEARS, VATTAYATHIL VEEDU, PERINGALA MURI, MULAKUZHA VILLAGE.** **3. SMITHA AJAYAN, AGED 28 YEARS, VATTAMUKADIYIL, VAKADAKKECHARUVIL VEEDU, PERINGALA MURI, MULAKKUZHA VILLAGE.** **4. N.VIJAYAN, AGED 55 YEARS, SREE BHAVAN VEETTIL, PERINGALA MURI, MULAKKUZHA VILLAGE.** **BY ADV. SRI.V.PHILIP MATHEWS** ## **RESPONDENT(S)/RESPONDENTS :** **----------------------------------------------------** **1. LEKHA, AGED 34 YEARS** - **VATTAMODIYIL VADAKKECHARUVIL VEEDU, PERINGALA MURI, MULAKKUZHA VILLAGE.** **2. SINDHU, AGED 31 YEARS,** - **VATTAMODIYIL VADAKKECHARUVIL VEEDU, PERINGALA MURI, MULAKKUZHA VILLAGE.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02-02-2016, ALONG WITH RSA.NO.126 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------** ## **R.S.A.Nos.125 & 126 of 2014 -----------------------------------------------Dated this the 2[nd] day of February, 2016** ## **JUDGMENT** The common judgment in A.S.Nos.180 of 2008 and 181 of 2008 on the file of the sub Court, Chengannur is under challenge in these second appeals. 2. A.S.No.180 of 2008 was an appeal preferred challenging the decision in O.S.No.30 of 2006 on the file of the Munsiff Court, Chengannur and A.S.No.181 of 2008 was an appeal preferred challenging the decision in O.S.No.20 of 2006 on the file of the said court. The suits were tried together treating O.S.No.20 of 2006 as the lead case. As such, I am referring to the parties in this judgment as they appear in O.S.No.20 of 2006. The defendants in the said suit are the appellants. R.S.A.Nos.125 & 126 of 2014 2 3. O.S.No.20 of 2006 was a suit for injunction and for damages. There are four items of properties in the suit. The plaint schedule item No.1 property belongs to the first plaintiff and the plaint schedule item No.2 property belongs to the second plaintiff. The plaint schedule item No.3 property is a property purchased by the father of the plaintiffs as per Ext.A2 assignment deed to be used as a pathway to the plaint schedule items No.1 and 2 properties from the public road on its west. The plaint schedule item No.4 property is the property owned by defendants 1 to 3. The fourth defendant is the member of the local Panchayath. 4. The case of the plaintiffs is that on 10.1.2006, the defendants have attempted to cut open a pathway through the plaint schedule item Nos.1 and 2 properties to the residential premises of defendants 1 to 3 in continuation to the plaint schedule item No.3 property. According to the R.S.A.Nos.125 & 126 of 2014 3 plaintiffs, the defendants have no rights whatsoever over the plaint schedule item Nos.1 and 2 properties and hence the suit for a decree of permanent prohibitory injunction restraining the defendants from using any portion of the plaint schedule item Nos.1 and 2 properties as a way to the plaint schedule item No.4 property. A decree for realization of damages was also claimed, alleging that the defendants have committed mischief in the plaint schedule item No.1 and 2 properties. The defendants resisted the suit, contending, among others, that defendants 1 to 3 have been using the portions of the plaint schedule item Nos.1 and 2 properties in continuation to item No.3 pathway for access to their property. According to them, they have, therefore, acquired a right of easement by prescription over a portion of the plaint schedule item Nos.1 and 2 properties. 5. Immediately after the suit, defendants 1 to 3 R.S.A.Nos.125 & 126 of 2014 4 have also instituted a suit as O.S.No.30 of 2006 seeking, among others, a declaration that they have acquired a right of easement by prescription over a portion of the plaint schedule item Nos.1 and 2 properties which was described in the said suit as the plaint schedule item No.5 property. 6. The trial court found that defendants 1 to 3 have not established the right of easement claimed by them in the suit and consequently decreed the suit. In the light of the decision in O.S.No.20 of 2006, O.S.No.30 of 2006 was dismissed. The defendants took up the matter in appeal. The appellate court, on a re-appraisal of the materials on record, confirmed the decision of the trial court. Aggrieved by the concurrent decisions against them, the defendants have thus come up in these appeals. 7. Heard the learned counsel for the appellants as also the learned counsel for the respondents/plaintiffs. R.S.A.Nos.125 & 126 of 2014 5 8. As noted above, the case set up by defendants 1 to 3 in the suit was that they have acquired a right of easement by prescription over a portion of the plaint schedule item Nos.1 and 2 properties. The courts below have concurrently repelled the said case of defendants 1 to 3. The learned counsel for the appellants did not pursue the said plea that was raised before the courts below. Instead, he contended vehemently that the materials on record are sufficient to infer that the property described as the plaint schedule item No.5 in O.S.No.30 of 2006 is a public pathway and as such, the courts below ought not have decreed O.S.No.30 of 2006. The learned counsel for the appellants contended that the evidence tendered by Dws.1 to 4 would indicate that the plaint schedule item No.5 property in O.S.No.30 of 2006 was being used by the defendants right from the time when the plaint schedule R.S.A.Nos.125 & 126 of 2014 6 item No.3 property was purchased by the father of the plaintiffs as per Ext.A2 document for access to their properties. According to the learned counsel, the aforesaid continuous user is sufficient to infer dedication of the said property for the use of the general public. He relied on the decision of this Court in _**Thomman vs. Kuriako**_ [1988 (1) KLT 361] in support of the said contention. 9. I do not find any merit in the contention advanced by the learned counsel for the appellants. As noted above, the contention that the plaint schedule item No.5 property in O.S.No.30 of 2006 is a public pathway has not been raised by the appellants before the courts below. A point which has not been raised before the courts below cannot be raised in a second appeal filed under Section 100 of the Code of Civil Procedure. That apart, merely for the reason that a portion of a private property has been used by R.S.A.Nos.125 & 126 of 2014 7 the general public for access to their properties and merely for the reason that the owner did not object to such user, it cannot be said that there was dedication of that portion of the property for the use of the general public. In the matter of deciding the question as to whether there is dedication in respect of an item of property in favour of the general public, what is to be seen by the court is as to whether there was any intention on the part of the owner of the property to abandon all his rights over the property for the benefit of the general public. Other than the deposition of Dws.1 to 4 to the effect that the defendants are using the plaint schedule item No.5 property in O.S.No.30 of 2006, there is nothing on record to infer that the plaintiffs have abandoned their rights over the disputed property for the benefit of the general public. Further, the evidence tendered by the aforesaid witnesses to the effect that they R.S.A.Nos.125 & 126 of 2014 8 have been using the plaint schedule item No.5 property in O.S.No.30 of 2006 right from 1982 cannot also be believed. The appellate court found from the report of the Advocate Commissioner that the defendants attempted to form a road through the plaint schedule item Nos.1 and 2 properties on the night of 10.1.2006. The appellate court also found that the alterations claimed to have been made in the plaint schedule properties were of recent origin. Further, the appellate court noticed that the road register maintained by the local authority does not show that there exists a public road as claimed by the defendants. In the aforesaid facts and circumstances, the case of the defendants 1 to 3 that they have been using portions of the plaint schedule item Nos.1 and 2 properties continuously right from the year 1982 cannot be believed. The decisions impugned in these second appeals are, therefore, perfectly in order. The R.S.A.Nos.125 & 126 of 2014 9 second appeals, in the circumstances, are devoid of merits and the same are accordingly dismissed. All the interlocutory applications in the appeals are closed. **P.B.SURESH KUMAR, JUDGE.** smm