Saraswathy Amma and others v. Malikapurathu Bhagavathi Devaswom and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938** **RSA.NO. 1070 OF 2016 (B)** **------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 18.11.2015 IN A.S. NO. 36 OF 2011 OF THE DISTRICT COURT, PATHANAMTHITTA** **AGAINST THE JUDGMENT AND DECREE DATED 18.02.2011 IN O.S. NO. 394 OF 2005 OF THE MUNSIFF COURT, PATHANAMTHITTA** ## **APPELLANTS/APPELLANTS/ PLAINTIFFS:** **-----------------------------------** ## **1. SARASWATHY AMMA, AGED 66,** **W/O BALAKRISHNA PILLAI, KOIPURATH HOUSE, V-KOTTAYAM MURI, V-KOTTAYAM VILLAGE, PRESENTLY RESIDING AT AMBADIYIL HOUSE, MELOODU P.O, MELOODU MURI, PERINGANADU VILLAGE.** **2. GOPINATHAN KARTHA,** - **AGED 74, KARTHIKA, V-KOTTAYAM MURI,** - **V-KOTTAYAM VILLAGE, KOZHANCHERY TALUK.** ## **3. JAYALEKSHMI,** **AGED 42, KARTHIKA, V-KOTTAYAM MURI,** - **V-KOTTAYAM VILLAGE, KOZHANCHERY TALUK** ## **BY ADV. SRI.G.SREEKUMAR (CHELUR)** **RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------** **1. MALIKAPURATHU BHAGAVATHI DEVASWOM, REGISTER NO 122, V-KOTTAYAM, REPRESENTED BY ITS SECRETARY, MALIKAPURATHU BHAGAVATHI DEVASWOM OFFICE, V-KOTTAYAM MURI, V-KOTTAYAM VILLAGE 686 001.** **2. SAHADEVAN NAIR, AGED 76, S/O KRISHNA KURUP, FORMER SECRETARY,** **MALIKAPURATHU BHAGAVATHI KSHETRAM ADMINISTRATIVE COMMITTEE, RESIDENT OF OTTAPLAVU NILKUNNATHIL HOUSE, VALLIKODE, KOTTAYAM 686 001.** **RSA.NO. 1070 OF 2016 (B) ------------------------** ## **3. N GOPALAKRISHNA NAIR,** **AGED 76, S/O NANU NAIR, PRESIDENT MALIKAPURATHU BHAGAVATHI KSHETHRAM ADMINISTRATIVE COMMITTEE, PRESIDINT OF SREE MANDIRAM, V-KOTTAYM, V-KOTTAYAM VILLAGE 680 001.** ## **4. V.D. AJAYAKUMAR,** **AGED 51, S/O DAMODHARAN, VILAVINAL THUNDIYIL, V-KOTTAYAM, V-KOTTAYAM VILLAGE 686 001** **5. R. RAJAN UNNITHAN,** **AGED 51, S/O RAGHAVAN NAIR, MAMPARA, ADIMURIYI, V-KOTTAYAM, V-KOTTAYAM VILLAGE 686 001.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = = = = R.S.A.No. 1070 of 2016** **- - - - - - -- - - - - - - - - - - - - - - - - - - -** Dated this the 16th day of November, 2016 ## **J U D G M E N T** The appellants are the plaintiffs in O.S. No.394 of 2005 on the files of Munsiff's Court, Pathanamthitta as well as the respondents in A.S. No.36 of 2011 on the files of the District Court, Pathanamthitta. The aforesaid suit was instituted by the plaintiffs, claiming that plaint schedule item No.1 property belongs to them, as per partition deed No.1904 and that the 1[st] defendant is the owner of item No.2 property. Item No.3 is a public pathway, commencing from the north eastern side of 'valiyapaickattu purayidom' and reaches up to the plaint schedule item No.1 property and that pathway passes through the compound of the temple. About one year back, the defendants constructed a 'sadhyalayam', encroaching a portion of puramboke **R.S.A. No. 1070 of 2016** ## **-: 2 :-** land and thereafter the defendants stacked granite stones in item No.3 way, obstructing its vehicular access. According to them, they have been using the said pathway as of right openly, continuously, and uninterruptedly for more than 100 years for egress and ingress to plaint schedule item No.1. It is also contended that plaintiff is having right over the item No.3 pathway, as a co-owner of the temple property and only because of some mistakes crept in the re-survey plan, the said public pathway was not included in the re-survey plan. Thus, they have the right to use the item No.3 pathway and the defendants have no right to make any obstruction in the said pathway. 2. In the written statement, the defendants contended that the suit is not maintainable, as the temple is not properly represented in the suit. There is no public way through the temple property. They have denied the allegation that they have **R.S.A. No. 1070 of 2016** ## **-: 3 :-** constructed a 'sadhyalayam' encroaching a portion of the puramboke land. According to them, all constructions were made in the temple property only. The plaintiffs have no manner of right over the property owned by the 1[st] defendant. The defendants have no objection in using the plaint schedule item No.3 property, as an easy access to the property of the plaintiff. It is also denied that the plaintiff is the co-owner of the temple property. 3. On the aforesaid pleadings both parties adduced evidence, consisting of oral testimonies of Pws1 to 5, DWs1 and 2, Exts.A1 to A16, Exts.B1 to B4 and Exts.C1 and C2(b). After considering the aforesaid evidence on record, the trial court dismissed the suit. Even though, the plaintiffs have preferred an appeal, the lower appellate court also after re-appreciating the evidence on record concurred with the findings of the trial court and dismissed the Appeal. The concurrent findings, **R.S.A. No. 1070 of 2016** ## **-: 4 :-** whereby the court below dismissed the suit are challenged in this Regular Second Appeal. 4. Heard the learned counsel appearing for the appellants. 5. It is not disputed that the plaint schedule item No.1 property belongs to plaintiffs. The property of the 1[st] defendant temple is scheduled as item No.2 and item No.3 alleged public pathway passes through item No.2 property, which belong to the temple. Even though, in the plaint the 2[nd] plaintiff has contended that he is also a co-owner of item No.2 property. No document had been produced to substantiate the said contention. So, it can be safely concluded that item No.2 property does not belong to the plaintiff also as a co-owner. 6. It is their case that item No.3 is a public pathway, passing through the puramboke and they have been using the said pathway openly, uninterruptedly and continuously and as of right for the last so **R.S.A. No. 1070 of 2016** ## **-: 5 :-** many years and their predecessors were also using the said pathway as such. It is true that if the plaintiffs succeeded in proving that item No.3 pathway is a public pathway, passing through puramboke as one among the public, having right to use the pathway. But, they cannot claim any special right or privilege over the said pathway more than that of any other person or public at large. Therefore, the first point to be considered is whether the plaintiffs had succeeded in proving that item No.3 is a public pathway, passing through the puramaboke land? In this respect, there is no evidence other than the oral testimony of PWs.1 to 5. After analysing the oral evidence of PWs2 to 5, the courts below concurrently observed that neither the oral evidence tendered by PW1 nor PW2 to 5 are sufficient to establish the nature of way as public one. Being a second appeal, this Court is not inclined to re-appreciate the oral evidence of Pws2 **R.S.A. No. 1070 of 2016** ## **-: 6 :-** to 5. 7. As rightly held by the court below, a private way may also acquire the character of a public way, when it is established that it was maintained by the public authority or the local authority or the Government, as the case may be and these are identifying character of a public way. In the above view, the court below is justified in finding that if it is a public way maintained by any local authority, public department or public authority or the Government, it will find a place in the register kept by the respective authorities such as Corporation, Panchayat, Municipality etc. and in the case of PWD roads, Public Works Department and such other Department etc. The plaintiffs have not produced any evidence to show and establish that the plaint schedule item No.3 is a public way on record. After analysing Ext.C2(b) survey plan, the lower appellate court specifically **R.S.A. No. 1070 of 2016** ## **-: 7 :-** observed that the alleged pathway is not shown as a public pathway in Ext.C2(b) re-survey plan. Thus, plaintiffs miserably failed to prove that item No.3 is a public pathway, passing through puramboke land. 8. The plaintiffs have further contended that plaint item No.3 pathway is actually passing through a puramboke land; but it was mistakenly stated in the re-survey as registered holdings of the 1[st] defendant. But, no document had been produced to substantiate the said contention. As noticed by the lower appellate court, there is no prayer in the suit, for rectification of any re-survey records or for a declaration as a public pathway. On the other hand, it stands proved by the re-survey plan and the commission report that plaint item No.3 is the part of property held by the 1[st] defendant. So also, the title deed produced by the defendants shows that the alleged puramboke through which the item No.3 public pathway passes is the part and parcel of the **R.S.A. No. 1070 of 2016** ## **-: 8 :-** registered holdings owned by the temple. It has come out in evidence that the alleged public pathway is a pathway passing through item No.2 property, owned and possessed by the 1[st] defendant temple and the said property lies without any fencing and the people of that locality passes through the said unfenced compound for egress and ingress to their residential holdings. Mere permissible user or passing through the unfenced temple compound cannot be termed as a user as of right and the claim raised by the plaintiffs cannot be recognised under law,in view of the decision of this Court in _**Siva Temple of Poovathoor Panniprayar Devaswom Board v. Parameswara Pillai**_ [2010(2)KLT 890]. 9. In the above decision, this Court held that _walking hither and thither along an open temple property would not accrue any right by such walking so long as such usage is without any right._ The fact that the people are crossing temple property, even **R.S.A. No. 1070 of 2016** ## **-: 9 :-** for a long time, will not confer any special right to them, as claimed by the plaintiffs. 10. At this juncture, it is pertinent to note that the defendants themselves made an undertaking in their written statement that they have no objection in using the plaint schedule item No.2 property as an easy access to the property of the plaintiffs and this undertaking will stand recorded, as a part of this judgment. 11. It was brought out in evidence from Ext.B4 letter that the additional 2[nd] plaintiff made a written request to the managing committee members of the temple, to open the gate of the temple compound for the purpose of taking lorry to his property for the purpose of his daughter's marriage. The request amounts to an implied admission that he has no right over item No.2 property or any special right over item No.3 pathway and his usage over the pathway is a permissive one only. This Court is of the opinion **R.S.A. No. 1070 of 2016** ## **-: 10 :-** that Ext.B4 letter would cut the root of the claim set up by the plaintiffs in the suit. I do not find any kind of illegality in the findings or perversity in the appreciation of evidence from which those findings have been arrived at. No question of law arises for consideration. Hence, this Regular Second Appeal is dismissed accordingly. DST Sd/- **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**