Sunny Sebastian vs Prabhakaran
2021 Latest Caselaw 16402 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

               THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

     THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943

                            R.S.A.No. 500 OF 2021
Against the judgment and decree dated 30.1.2021 in A.S.No.102/2019 on
the file of the Sub Court, Pala arising out of the judgment and decree dated
30.11.2019 in O.S.No.87/2016 on the file of the Munsiff's Court, Pala

APPELLANTS/APPELLANTS/DEFENDANTS:

     1       SUNNY SEBASTIAN,
             AGED 50 YEARS,
             S/O.DEVASIA @ SEBASTIAN,
             PALLIVADAKKEDATH HOUSE, KURAVILANGAD KARA,
             KURAVILANGAD VILLAGE, MEENACHIL TALUK,
             KURAVILANGAD.P.O, PIN-686633.

     2       ALEYAMMA KURIAKOSE,
             AGED 72 YEARS,
             W/O.KURIAKOSE,
             MURICKAL HOUSE,
             KURAVILANGAD KARA,
             KRAVILANGAD VILLAGE, MEENACHIL TALUK,
             KURAVILANGAD.P.O, PIN-686633.
             BY ADVS.
                 SRI.VINCENT.K.C.
                 SRI.P.S.GEORGE


RESPONDENT/RESPONDENT/PLAINTIFF:

             PRABHAKARAN,
             AGED 74 YEARS,
             S/O.MADHAVAN,
             VALAKKATTIL HOUSE,
             KURAVILANGAD KARA,
             KURAVILANGAD VILLAGE, MEENACHIL TALUK,
             KURAVILANGAD.P.O, PIN-686633.

         THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION

ON 26.07.2021, THE COURT ON 05.08.2021 DELIVERED THE FOLLOWING:
 R.S.A.No.500 of 2021


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                              JUDGMENT

This appeal is directed against the judgment and

decree dated 30.1.2021 in A.S.No.102/2019 on the file of

the Sub Court, Pala (hereinafter referred to as 'the first

appellate court') confirming the judgment and decree

dated 30.11.2019 in O.S.No.87/2016 on the file of the

Munsiff's Court, Pala (hereinafter referred to as 'the trial

court'). The appellants are the defendants in

O.S.No.87/2016 and the appellants in A.S.No.102/2019

respectively. The respondent is the plaintiff before the trial

court and the respondent before the first appellate court.

The parties are hereinafter referred to as 'the plaintiff' and

'the defendant' according to their status in the trial court

unless otherwise stated.

2. The suit was for permanent prohibitory

injunction and other incidental reliefs. The plaint schedule

item No.1 property is having an extent of 3.62 Ares and a R.S.A.No.500 of 2021

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building comprised in Block No.9, Re.Sy.No.454/2 of

Kuravilangad Village wherein the plaintiff resides. The

plaintiff purchased the above property by virtue of sale

deed No.3195 of 1986 of S.RO., Kuravilangad. The

defendants are neighbouring property owners. According

to the plaintiff, there exists a road passing through the

property of plaintiff, defendants and other persons and the

road popularly known as 'Kuravilangad Churcha Bhagam-

Pullukala Road'. As per the plaint description, the road

starts from Kuravilangad Churcha Vayala Road passes

through the northern side of the said parish hall towards

east and proceeds through the southern boundary of the

property of Thomas Kannanthara and proceeds through

the property of the 1st defendant, then continues through

the property of the plaintiff and then through the property

of the 2nd appellant and finally reaches Pullukala on

Mahatma Gandhi Road. The said road is approximately R.S.A.No.500 of 2021

..4..

500 m. length and 3.5 m. width. The same was allegedly

constructed in the year 2002 by dedication and surrender

of the properties by the respective owners. It is being

used as a public road by the public at large. Therefore, the

plaintiff is entitled to use the public road as of right

without any obstruction. According to the plaintiff, the

defendants 1 and 2 made attempt to obstruct the road

which compelled the plaintiff to file the suit.

3. The defendants in their written statement

specifically contended that there is no road in existence as

stated in item No.2. According to them, there is a road

which starts from M.C. road passing in between the

church and parish hall, known as 'Kuravilangad Church-

Vayala Road'. A road starting from the above Kuravilangad

Church-Vayala ends in the property of the 1st defendant

and the same is a private road. There is another road

which starts from Pullukala on Mahatma Gandhi Road R.S.A.No.500 of 2021

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passing through the property of the 2 nd defendant and

ends in the property of the plaintiff. The specific case

raised by the defendant is that there is no inter-

connection between these two roads and there is no road

as claimed by the plaintiff. It was contended that the land

owners had not surrendered the portion of the property

and the road was not constructed as a public road. The

road starting from Kuravilangad Church-Vayala road and

ending in the property of the 1st defendant had never been

used by the plaintiff for transportation to plaint schedule

item No.1 property. The 1st defendant while constructing a

road to his property desired to extend it to the property of

the 2nd defendant. The 1st defendant brought granite

stones and other materials for the construction of his

house through the road starting from Kuravilangad

Church-Vayala road and the road portion passing through

the property owned by the 1st defendant. The portion of R.S.A.No.500 of 2021

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the property towards east from the entry point to his

residence though prepared as a road years back was

being used for cultivation and a wall was constructed at

the boundary of the plaintiff. Hence, this road portion was

not connected to the property of the plaintiff. There were

granite stones lying on that portion of the 1st defendant's

property which now the plaintiff claims to be a road. The

plaintiff tried to open a road by removing the granite

stones lying in the above portion of the property of the 1 st

defendant. Hence, the wife of the 1 st defendant filed a

complaint before the police. The matter was settled before

the police with a direction to replace the granite stones

which were removed from the property of the 1 st

defendant. It was thereafter filed the suit without

bonafides.

4. Before the trial court, after framing necessary

issues, PWs.1 to 4 were examined and marked Exts.A1 R.S.A.No.500 of 2021

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and A2 on the plaintiff's side. DW1 was examined and

marked Exts.B1 and B2 on the defendants' side. Exts.C1

and C2 series were also marked.

5. The trial court after having heard both sides and

on perusal of the documents on record, entered a finding

that there exists a road through the property of the

defendants 1 and 2 and the plaintiff which starts from

Kuravilangad Church-Vayala road and ends in Pullukala on

Mahatma Gandhi road. The contention of the defendants

that there are two roads in existence and no single road

as claimed by the plaintiff was rejected. The trial court

entered a finding that the plaintiff has proved existence of

the road and the defendants have no right to obstruct the

free transportation through the road. Hence, the suit was

decreed restraining the defendants from creating any

obstruction to the plaint schedule item No.2 road or from

changing its character or from obstructing the plaintiff in R.S.A.No.500 of 2021

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using the same for the vehicular traffic in accordance with

Ext.C2 (a) plan appended to the decree.

6. The defendants preferred first appeal before the

Sub Court, Pala. The learned first appellate Judge

dismissed the appeal confirming the judgment and decree

of the trial court. Hence this Regular Second Appeal.

7. Heard the learned counsel for the appellants.

8. The learned counsel for the appellants

submitted that permanent prohibitory injunction cannot be

granted on a so-called public road, when a portion of the

road passing through the property of the plaintiff has not

been surrendered or relinquished for construction of such

a road. The learned counsel further submitted that, when

the pleading relating to the lie of the road is contrary to

the entries in the registered document relied on by the

plaintiff, it was not legal or proper on the part of the trial

court and the first appellate court in granting a permanent R.S.A.No.500 of 2021

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prohibitory injunction restraining the

appellants/defendants from obstructing the alleged road.

It was argued that the plaintiff scheduled only a portion of

the road in the plaint.

9. The trial court granted the decree for permanent

prohibitory injunction restraining the defendants from

creating any obstruction in plaint schedule item No.2 road

portion or changing its nature and lie or obstructing the

plaintiff in using plaint schedule item No.2 road portion for

traffic including vehicular traffic. Ext.C2(a) plan was

appended to the decree. In paragraph 22 of the trial court

judgment it is clearly stated that the said way can be

identified from Ext.C2(a) plan.

10. Certain facts are admitted. Plaint schedule item

No.1 belongs to the plaintiff by virtue of Ext.A2 sale deed.

The property of the 1st defendant is on the immediate

western side of the plaint schedule item No.1 property. R.S.A.No.500 of 2021

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The property of the 2nd defendant is on the immediate

eastern side of the property of the plaintiff.

11. The defendants contended that there is no road

in existence as plaint schedule item No.2. However, the

plaintiff maintained that the road starts from the eastern

side of the M.C. road passes through the northern side of

the parish hall and southern side of the Kuravilangad

church. The road further proceeds towards east and then

turn towards north and then passes through the property

of the 2nd defendant, then passes through the property of

the plaintiff and then through the property of the 1 st

defendant and reaches Pullukala on Mahatma Gandhi

road. According to the plaintiff, the said road was

constructed using the properties surrendered by the

owners of the property and it was constructed in the year

2002.

12. The defendant admitted that there is a road in R.S.A.No.500 of 2021

..11..

existence which starts from the side of Kuravilangad

church and ends at the property of the 1 st defendant. The

defendant also admitted the fact that another road starts

from Mahatma Gandhi road at Pullukala and reaches at

the property of the plaintiff. It is the definite case of the

plaintiff that the way which starts from the side of

Kuravilangad church continues through the property of the

defendants and then continues through the property of

the plaintiff and further continues through the property of

the 2nd defendant and reaches at Pullukala Bhagom on the

Mahatma Gandhi road. On the other hand, according to

the 1st defendant, the road which starts from Pullukala

Bhagom and reaches the property of the plaintiff is a

separate road and the road which starts from the side of

the Kuravilangad church and reaches the property of the

1st defendant is another road. He would maintain that both

these roads are not joining together.

R.S.A.No.500 of 2021

..12..

13. Immediately after filing the suit, the

Commissioner visited the property and prepared Ext.C1

series. In Ext.C1 series it is reported that the way which

starts from the side of the church and reaches on the

Mahatma Gandhi road at Pullukala Bhagom is having an

age of 15 years and there is no obstruction for vehicular

traffic through the said road. During the trial, no objection

was filed to Ext.C1 commission report. Going by the

Ext.C1 series commission report, both the trial court and

the first appellate court concurrently entered a finding

that on the eastern boundary of the property of the 1 st

defendant, an attempt was made to construct hollow-

bricks across plaint schedule item No.2 and the said

construction was aged only 1 or 2 days at the time of the

visit of the commission. It was also reported that the said

construction was made without any foundation.

14. The road literally means any highway or any R.S.A.No.500 of 2021

..13..

road to which the public has access and so includes every

road over which the public passes. The trial court relied on

the commission report and entered a finding that the

plaintiff has proved existence of the public road starting

from Kuravilangad Church-Vayala road and ending in

Pullukala on the Mahatma Gandhi road passing through

the properties of the plaintiff and defendants. According to

PW3, pipelines for the drinking water scheme has been

lying through the way passing through the properties of

the plaintiff and the defendants and all the houses on the

sides of the aforesaid road have taken water connection

from the scheme. The commission also reported that the

nature of the road is a public road where public have

access through the same. The existence of plaint schedule

item No.2 road is proved through Ext.C1 and C1(a). The

commissioner inspected the property and located plaint

schedule item No.2 property as per Ext.C2(a) plan. It is R.S.A.No.500 of 2021

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significant to note that the alleged construction was made

within one or two days before the visit of the commission.

PW1 has categorically stated the existence of plaint

schedule item No.2 road through the properties of the

defendants 1 and 2. The contention advanced by the

defendants is against the commission report in this case.

Hence both the trial court and the first appellate court

concurrently held that the defendants has no manner of

right to obstruct the user of the said road as a public road.

The finding is legal and proper.

15. To be a substantial question of law involved in

the case, there must be first, a foundation for it laid in the

pleadings and the question should emerge from the

sustainable findings of fact. In a second appeal, the

jurisdiction of the High Court being confined to substantial

question of law, a finding of fact is not open to challenge

in second appeal, even if the appreciation of evidence is R.S.A.No.500 of 2021

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palpably erroneous and the finding of fact is incorrect. On

going through the facts of this case, it is evident that both

the trial court and first appellate court meticulously noted

the existence of a public road as alleged in the plaint. Well

reasoned judgments of the two courts below are not liable

to be interfered with. No substantial questions of law are

involved. Hence, this Regular Second Appeal is liable to be

dismissed.

In the result, this Regular Second Appeal is

dismissed. There will be no order as to costs. Pending

applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE skj