Vinu Koshy Abraham v. The Greater Cochin Development Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 25TH DAY OF JULY 2013/3RD SRAVANA, 1935** **RSA.No. 62 of 2011 ( ) ----------------------AS 207/2007 of I ADDL.DISTRICT COURT, ERNAKULAM OS 180/2006 of PRINCIPAL MUNSIFF COURT, ERNAKULAM -----------------** **APPELLANT(S)/APPELLANT/PLAINTIFF :- --------------------------------------** **VINU KOSHY ABRAHAM, AGED 30, S/O.M.K.ABRAHAM, RESIDING AT FLAT NO.10-B VI ABM TOWERS, KADAVANTHRA DESOM, ELAMKULAM VILLAGE KANAYANNUR TALUK, COCHIN - 682 020.** **BY ADVS.SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH)** ## **RESPONDENT(S)/RESPONDENT/DEFENDANT :-** **----------------------------------------** **THE GREATER COCHIN DEVELOPMENT AUTHORITY, KADAVANTHRA DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK, COCHIN - 682 020 REP. BY ITS SECRETARY.** **BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.KANDAMPULLY RAHUL SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------R.S.A. No.62 of 2011 -----------------------------Dated this the 25[th] day of July 2013** ## **J U D G M E N T** The plaintiff is the appellant. He concurrently lost in a suit for injunction. His case is that in the public auction conducted by the Greater Cochin Development Authority (for short GCDA), the plaint schedule property was purchased by the plaintiff's predecessor and the sale deed dated 18.5.1995 was executed in favour of the plaintiff's predecessor Sri.Babu Thomas from whom the plaintiff obtained right over the plaint schedule property. Based on the sale deed he applied for getting the plan and licence for construction of a multi storied building in the plaint schedule property. The eastern boundary of the property is shown as road. As per the plan approved by the Corporation also, the eastern boundary is shown as road. Based on the permission granted, a multi storied building was constructed in the suit property. According to the plaintiff, he has got 22.78% of undivided share in the plaint R.S.A. No.62 of 2011 -: 2 :- schedule property and also over certain area in the first floor and ground floor. The total extent of land is 51.152 cents. It is comprised in Survey Nos.391 and 392 of Elamkulam Village. According to the plaintiff, there was no boundary wall on the eastern side of the suit property which is the western side of the defendant's property. It was contended that on 14.1.2006, the defendant constructed a compound wall on the western side of the road and thus prevented the free ingress and egress to the multi storied building. According to the plaintiff, the defendant has no right to construct a compound wall except in accordance with the plan approved which should provide three entries into the shopping complex and plaintiff's premises. Hence, contending that construction of the compound wall is unauthorised and illegal, the suit was filed seeking a prohibitory injunction restraining the defendant and their men from obstructing free ingress and egress to the plaint schedule property. A mandatory injunction directing the defendant to demolish the compound wall which had already been constructed on the eastern side of the plaint R.S.A. No.62 of 2011 -: 3 :- schedule property was also sought for. 2. The defendant resisted the suit denying the allegations made in the plaint. It is contended that the property on the west and the south of the plaint schedule property also belongs to the defendant. The contention that the entire eastern side of the plaint schedule property was assigned to the plaintiff or his predecessor is denied. The defendant put up a road around entire their shopping complex, western side of which is immediately on the eastern side of the plaint schedule property. The plaintiff does not have any right over the said portion of the land belonging to the defendant where the defendant put up a road for the convenient use of the shopping complex belonging to the defendant. The defendant has every right to construct the compound wall around its property including the portion on the western side of the road mentioned above. The defendant further contended that there were complaints from the shop owners running business in the shopping complex belonging to the defendant situated on the eastern side of the plaint R.S.A. No.62 of 2011 -: 4 :- schedule property that the occupants and customers coming to AVM Towers were misusing the premises of the shopping complex of the defendant and that the plaintiff has encroached upon the property of the defendant and that the aforesaid persons were draining out water to the GCDA shopping complex. It is also contended that the defendant agreed to permit the residents of AVM Towers to temporarily use the eastern road by putting up an opening to the road of a width of 3.60 metres. Accordingly opening of a width of 3.60 metres was also provided almost at the middle of the compound wall put up by the defendant, as an access to the eastern road from the suit property. The contention that the construction of the compound wall obstructs the free ingress and egress to the plaint schedule property is incorrect. The defendant is entitled to construct the compound wall around its property to preserve and protect the same. 3. The plaintiff was examined as PW1 and Exts.A1 to A4 were marked. The Commissioner was examined as CW1 and her report was marked as Ext.C1. The trial court, after R.S.A. No.62 of 2011 -: 5 :- considering the entire evidence found that the road in question which is situated around the shopping complex of the defendant/GCDA is not a public road. It was also found that there was a main opening at the north-eastern corner and that the plaintiff is not entitled to have access to the eastern road apart from the opening mentioned above. The lower appellate court concurred with the view taken by the trial court and the appeal was dismissed. 4. Learned counsel for the appellant would submit that the courts below should have found that the plaintiff's predecessor had participated in the auction and the land was purchased for construction of a multi storied building since the entire eastern boundary of the property was shown as the road and so, it was possible for him to use the road on the eastern side from every point of the suit property. It is further contended that the defendant/GCDA cannot construct compound wall and prevent access to the road on the east. It is further contended that the courts below went wrong in holding that it is not a public road but a road belonging to the GCDA. Hence, the appellant R.S.A. No.62 of 2011 -: 6 :- contends that the judgment and decree passed by the courts below are liable to be reversed. ## 5. The following substantial questions of law were ## framed in this case:- - (i) Is it not an implicit fact that the road on the eastern side is vested in the Corporation, where the Corporation is a trustee holding the same for the benefit of the general public including the appellant and therefore the appellant has as a matter of right to use the same on all the points that touches his property ? - (ii) Is it not the plea of the defendant barred by the principles of estoppel, since it is from them that the appellant purchases the property, and besides the documents and later the approved plan and sketch speaks of the road on the eastern side with access provided to the appellant and, therefore, can the respondent any more contend against the same ? - (iii) Is it not a case of gross injustice perpetrated, since under the provisions of the statute the defendant is only a regulatory body of the Corporation and therefore, there cannot be a right for the defendant as an exclusive owner in the way or that the defendant could be the owner of any property within the Corporation limits ? - (iv) Is it not a case of deciding a first appeal with material irregularity and perversity since the manner in which the rights are adjudicated being patently wrong, is it not a case where substantial questions of law between the parties arises for consideration ? R.S.A. No.62 of 2011 -: 7 :- 6. The learned counsel for the appellant would submit that since the eastern boundary of the property is described as road and since admittedly that road is shown in the sale deed executed in favour of the plaintiff's predecessor it should be presumed that it is a public road. It is further contended that the said road should be deemed to have been vested in the Corporation and so the appellant has right to use the same at all the points that touches his property. It is also contended that the plan and sketch approved by the Corporation would show the eastern side as the road and so the appellant has got right of access to the road on the eastern side from every point touching the plaint schedule property. It is also argued that the respondent is estopped from contending that the road on the eastern side is a public road since that road is mentioned in the plan approved by the Corporation and also because that road is shown in the document of assignment as the eastern boundary. 7. The aforesaid submission is strongly resisted by the learned counsel for the respondent. The Commissioner's R.S.A. No.62 of 2011 -: 8 :- report and the evidence on record and even the admission made by P.W.1 would indubitably make it clear that the road on the eastern side mentioned by the plaintiff is the road put up by the defendant - GCDA. The evidence is clear on the point that the defendant put up a road around their shopping complex. In otherwords, the defendant, GCDA put up a shopping complex and around the entire shopping complex a road was also put up by them. The road in question referred to in the suit is the western portion of that road put up by the defendant around their shopping complex. The public road namely; Gandhinagar road lies far to the east of the shopping complex. A definite access to this private road (the road lying immediate to the east of the plaintiff's property) is provided through the north-eastern corner. The width of the gap which leads to the road on the east is 10.5 metres. It is so reported by the Advocate Commissioner. It is also reported that there is another gap on the south-eastern side of a width of 3.4 metres. Ext. A3, the sketch approved by the Corporation and issued in favour of the appellant would also show that R.S.A. No.62 of 2011 -: 9 :- the access to the road is on the north-eastern side as pointed out by the Advocate Commissioner. 8. The whole argument proceeds on the footing that the appellant is entitled to have access to the road on the east from every point since in the document the eastern boundary was shown as the road. But it is to be noted that it is not a public road but only a private road. It is proved beyond any doubt that it is a road put up by the GCDA/the respondent around their shopping complex. The western portion of their road is the eastern side of the appellant's property. There is also evidence to show that on the eastern side of the appellant's building there is an open car parking space. It is still to the eastern side of that car parking area, the respondent has put up the compound wall. There is no case for the appellant the area/place where the compound wall was put up by the respondent does not belong to the respondent. There is no case that any inch of land belonging to the appellant was trespassed upon by the appellant. The argument proceeds on an erroneous assumption that the road put up by the GCDA R.S.A. No.62 of 2011 -: 10 :- around their shopping complex is a public road. It is found to be a fallacious argument by the courts below for valid reasons. 9. The public road - Gandhi Nagar road is far to the east of the shopping complex. As has been referred to earlier from the north eastern corner of the plaintiff's property there is a direct access to this road put up by the GCDA and from that point there is a road leading to the Gandhinagar road. It is in that way from the Gandhinagar Road the appellant and their men are to enter into the private road (shopping complex-road) and then to the appellant's property. The attempt made by the appellant that the road put up by the respondent around their shopping complex is a public road and so the appellant has got right of access to that road from every point is found to be untenable. Simply because the word used in the document and in the plan is road the appellant contends that it is a public road. The courts below rightly did not accept that plea. 10. As has been stated earlier, the plaintiff also does ## R.S.A. No.62 of 2011 -: 11 :- not dispute the fact that it was the defendant who put up the road around their shopping complex. It is also not disputed that it is the western portion of the road so put up by the defendant which is the road on the eastern side of the suit property. Even in the plaint it was stated by the plaintiff that the eastern side of his property was separated by himself by putting up a fence . Therefore, it is not a case where the plaint schedule property was simply abutting the road on the east without anything to separate. Since the property belongs to the defendant and since the defendant has to protect its property from encroachment and also to prevent the dirty water being drained into the respondent's property they thought of putting up the compound wall but leaving the gap of a width of 10.5 metres as stated above which is the access provided to the appellant for entry into the shopping complex road. 11. Ext.C2 plan shows that at the south eastern corner also there is a gap of 3.4 metres. The evidence would also show that the entire property on the eastern side of the plaint schedule property belongs to the defendant R.S.A. No.62 of 2011 -: 12 :- and the defendant has constructed a shopping complex on the eastern side of the plaint schedule property. The defendant would contend that it is for the convenient use of the shopping complex the road was put up around the entire shopping complex. The plaintiff has absolutely no right over any portion of the land which belongs to the defendant. In fact there is no case for the appellant that he has got any right over the land which belongs to the defendant. It was also contended by the defendant that the plaintiff and his men were attempting to encroach into the defendant's property and there was also an attempt to drain out water to the GCDA complex and that was why a compound wall was put up. In fact the defendant has a further contention that the plaintiff had made construction in violation of the approved plan and against the provisions of the building rules. However it is necessary to be probed into now. 12. The crucial question for consideration is whether the road on the eastern side of the plaint schedule property is a public road. It has already been found that it is not a R.S.A. No.62 of 2011 -: 13 :- public road but only a road put up by the defendant/GCDA around their shopping complex and it is only their private road. It was also found that the plaintiff has absolutely no right over the land where the compound wall was put up. The case was founded on the premise that the road put up by the defendant around their shopping complex is a public road and so the plaintiff should be given right of access to that road from every point leaving the entire area without any compound wall so as to enable the plaintiff to enter into the road from every point touching the eastern boundary of the suit property. Such a contention cannot be accepted in view of the fact that the road mentioned in the document and in Ext. A3 plan is the road constructed by the defendant GCDA for their convenience and beneficial enjoyment. 13. The decision relied upon by the learned counsel for the plaintiff in **Godavari Bhai v. Cannanore Municipality – 1984 KLT 1103** has absolutely no relevance to the fact in issue in this case. Though the plaintiff wanted to contend that the road on the eastern R.S.A. No.62 of 2011 -: 14 :- side is a public road vested in Corporation no evidence what so ever could be produced to substantiate that contention. The contention that since the road is constructed by the GCDA it should be presumed to be a public road is bereft of any merit. The approved plan issued by the Corporation and the Commissioner's report and plan would show that the access provided to the suit property is on the north eastern corner. The courts below have found that the main entry to the suit property is through the north-eastern side through the gap measuring 10.5 metres as noted by the Commissar in Ext. C1 report and Ext.C2 plan. Since admittedly the road constructed by the defendant around their shopping complex is the one put up in their own property and since it belongs to them exclusively the contention that there is trust in favour of the general public for the user of the same and thus it has assumed the character of the public road is also devoid of any merit. Gandhinagar road is far to the east of suit property to which there is an access from the north-eastern extremity. Since the land where the compound wall was put up R.S.A. No.62 of 2011 -: 15 :- belongs to the defendant, the contention that the defendant has no right to put up a compound wall to protect their property and also for their convenience cannot be sustained. 14. The courts below have rightly found that it is not a public road and as such the contention raised by the appellant must fall to the ground. The suit was rightly dismissed by the courts below. I find no legal infirmity in the findings entered by the courts below. This R.S. A. is hence dismissed. Sd/- **N.K.BALAKRISHNAN, JUDGE.** //True Copy// P.A. to Judge ani/Jvt