(vi) What reliefs and costs.
(iii)Whether the plaint schedule properties are identifiable?
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(iv) Whether the defendants have encroached the plaint 'B'
schedule property?
(v) Whether the plaintiffs are entitled to get a mandatory
injunction?
(vi) What reliefs and costs?"
3. On appreciation of the oral and documentary evidence, the trial
court came to the conclusion that based on Exts.C8 and C9, the identity of
the pathway is proved and that the plaintiffs are entitled to a decree for
mandatory injunction and accordingly O.S. No.33 of 2008 and O.S. No.92
of 2008 were allowed and the defendants were directed to demolish and
remove the constructions made in 'B' schedule way in OS No.33 of 2008
i.e., 'C' schedule in O.S. No.92 of 2008. Aggrieved, the defendants
preferred A.S. Nos.6 and 7 of 2017. The first appellate court found that the
plaintiffs were not able to prove the existence of the public way as set up
in the plaint and accordingly reversed the findings of the trial court,
allowed the appeals, and dismissed both the suits. While admitting the
appeals, the following substantial questions of law are formulated for
consideration in these appeals.
" Whether the lower appellate court is correct in holding that
the indication about existence of a pathway in Ext.A9 and A14
sketches preferred by respondents 1 and 2 before statutory
authorities will not prove the existence of a public pathway?"
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"(i) Whether the existence of a pathway in the official records
presuppose the existence of a pathway?
(ii) Whether the lower appellate court is correct in holding that
the indication about existence of a pathway in Ext.A9 and A14
sketches preferred by respondents 1 and 2 before statutory
authorities will not prove the existence of a public pathway?"
4. Heard Sri. P.A. Harish, the learned counsel appearing for the
appellants, and Sri. P.C. Chacko, the learned Standing Counsel appearing
for the respondent, KSRTC.
5. Sri. P.A. Harish, the learned counsel appearing for the appellants,
contended that the plaintiffs have discharged the initial burden of proving
the existence of a pathway. He would point out with reference to Ext.A5
surveyor plan and also the revenue records, Ext.A6, wherein the property
covered in Survey No.221/1 is described as a Government Puramboke. It
is further contended that, going by the plan submitted by the KSRTC for
obtaining the exclusive license for storage of diesel, the existence of the
pathway is shown. In fact, the entire compound wall abutting the southern
side of the road was constructed without any plan. He would further
submit that the disputed area is outside the property of the defendant. The
absence of any sketch available along with the allotment letter issued by
the forest department in favour of KSRTC is a strong indication regarding
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the fact that what was conveyed to KSRTC is that the property other than
the pathway. The best evidence, if any, available is in the hands of the
KSRTC, which has been completely withheld by the defendants from the
court, and therefore, the presumption to be drawn is adverse to the
interest of the defendants. The trial court accepted the prima facie
evidence, including the official revenue records, and found that the
plaintiffs are entitled to succeed. The first appellate court erred
egregiously in reversing the findings that the plaintiffs had an alternate
way to enter into the property and that the evidence and pleadings of the
parties were not properly assessed by the trial court.
6. Per contra, Sri. P.C. Chacko, the learned counsel for the
respondents/defendants, contended that the claim put forward is neither
one of easement by prescription nor a claim of necessity, but rather a case
of a public pathway being set up, and it is for the plaintiffs to establish its
existence. He would point out that in terms of the provisions contained
under the Kerala Panchayath Raj Act, 1994 and the Kerala Municipality
Act, 1994 the pathway will vest with the panchayath or the municipality,
as the case may be. The local authority would thus maintain a register of
records to show the existence of the pathway. The advocate commissioner,
in his report marked as Ext.C5, has found an alternate way to enter into
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the plaint schedule property. In fact the learned counsel further asserted
that while cross-examining, PW1 had an inconsistent case. He would
further point out, by referring to the various statements made by the
plaintiffs in his oral testimony, that the inconsistencies therein is
sufficient to discredit the plaintiffs' claim. With specific reference to the
statement made by the plaintiffs in the cross-examination as regards the
existence of the alternate way, the learned counsel submitted that it was
the burden of the plaintiffs to prove the existence of the way through the
property of the KSRTC. He further submitted that a KSRTC depot and a
garage are functioning in the premises, and hence it is not feasible to
provide a pathway for public access, as the same would raise security
concerns for the Corporation, and therefore prayed that the judgment of
the first appellate court be sustained because the same is correct on fact
and on law.
7. I have considered the rival submissions raised across the Bar and
have perused the judgment rendered by the courts below, and also the
records in the present case.
8. As stated above, there are two substantial questions of law that
requires to be answered by this Court. First, this Court will address the
question as to whether the description of plaint 'B ' schedule property in
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O.S. No.33 of 2008 and 'C' Schedule in O.S. No.92 of 2008 as a 'way' in
the public record will give rise to a presumption regarding the existence
of a way. After analysing the rival submissions raised across the Bar, this
Court finds that the KSRTC is denying the claim of the plaintiffs on the
ground that it was allotted with 25 cents from the forest department as per
Ext.B1 order. Read as may, this Court could not find any description of the
property measuring to 25 cents. A specific query was raised by this Court
to the learned counsel for the KSRTC as regards how to identify the 25
cents allotted to them. The learned Standing Counsel would submit that
from the western boundary of the existing property, 25 cents will have to
be measured out. This Court finds the aforesaid submission to be quite
strange. First of all, this Court finds that there is no plan appended to
Ext.B1. When the KSRTC is setting up an exclusive title over the plaint C
Schedule property in O.S. No.92 of 2008, it is for them to substantiate it.
Mere assertion that 25 cents from the western boundary of the existing
property will not suffice. Even the plan or title deed relating to One (1)
acre which is stated to have been acquired is not produced, even if it is
assumed that such a plan was appended to Ext.B1 order, the KSRTC
deliberately withheld the same from the purview of the courts below. If, as
a matter of fact, there was no plan appended to Ext.B1, then the matter
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becomes still worse. The KSRTC itself was not sure about the identity of
25 cents. It is in this context, this Court is required to address the first
question of law framed by this Court.
9. The evidence adduced on behalf of the plaintiffs shows that prima
facie, the plaintiffs have been able to discharge their burden by producing
the revenue records as well as the survey sketch to show the existence of
C schedule pathway in O.S. No.92 of 2008. Further, when the KSRTC
chose to submit necessary plan for approval of the construction of the
building and also for exclusive licence, the western end of the property of
the KSRTC is described as a pathway. Though the parties are in serious
dispute as to the extent of the C schedule pathway in O.S. No.92 of 2008,
this Court is of the view that, for answering the first question of law, the
question regarding the extent of the pathway as claimed by the parties is
immaterial, since Ext.C9 survey report prepared by the Taluk Surveyor
clearly evidences the existence and extent of the C schedule pathway. The
report of the advocate commissioner and the survey plan prepared with
help of taluk surveyor appointed by the trial court will clearly indicate
that, respondent KSRTC transgressed into the pathway in question and
constructed the canteen and its extension, and also constructed the water
tank in the said property. It must be remembered that the C schedule
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pathway in O.S. No.92 of 2008 at present is the only way through which
the plaintiffs can access the plaint A schedule property through the KSRTC
garage road, which in turn leads to the Mananthawady- Mysore road.
10. Equally so, this Court is not impressed by the submission of the
learned counsel for the respondents that the appellants have access to the
property through an alternate way, as reported by the advocate
commissioner in Ext.C5. In order to test the veracity of the aforesaid
submission, this Court examined the contents of Ext.C5 to find out as to
whether the advocate commissioner had found out an alternate way. The
advocate commissioner, in Ext.C5 report dated 26.5.2009, found that
towards the western end of the KSRTC garage there lies one Kurimmannil
quarters, and there exists a thirty (30) metre length way mud road to
access the building named as Kurimmannil quarters. Thereafter, the
plaintiffs will have to access the forest land to enter into the plaint
schedule property. It remains to be seen whether an easement by
prescription or necessity could be claimed through the forest land. At any
rate, since there is no pleading in the written statement by the KSRTC as
regards the existence of an alternate way and since no issue was framed
regarding the entitlement of the plaintiffs to access the plaint A schedule
property through an alternate way, this Court is not called upon to
& 69 of 2020 15 2025:KER:73762
consider the aforesaid question.
11. Coming back to the judgment rendered by the first appellate
court, this Court finds that the first appellate court, on a complete
misconception regarding the entitlement of the plaintiffs to prove the
existence of the pathway, held that the plaintiffs will have to prove that,
at the time of transferring of twenty five (25) cents of land in favour of
the defendants, the forest department had left out the C schedule as
public way in O.S. No.92 of 2008 and thereafter constructed the
compound wall on the eastern side of it. It is quite strange as to how the
first appellate court could conceive such a finding, especially in the
light of the unimpeachable evidence in the form of Ext.C9 plan prepared
by the taluk surveyor, Ext.C8 report, and also the description of the way
in Ext.A5 Survey Plan. These documents would unequivocally establish
the existence of the way as claimed by the appellants. Once the
appellants/plaintiffs were successful in proving the existence of a prima
facie way, it was up to the defendants to dispel the same by contending
that when the transfer took place from the forest department, the transfer
was inclusive of the way covered under twenty five (25) cents. The
conscious attempt to withhold the sketch, if any, appended to Ext.B1 is an
indication that, the defendants were apprehensive about its ability to
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prove that, the transfer of 25 cents was inclusive of the way as claimed by
the plaintiffs.
12. In the light of what is discussed above, this Court is of the
considered view that the first question of law is to be answered in favour
of the appellants.
13. Coming to the second question framed by this Court, the first
appellate court appears to have rejected Exts.A9 and A14 on the ground
that what is described in Ext.A9 is only 1.20 width of pathway found in the
sketch submitted by the KSRTC. It is true that the extent of pathway
shown in Ext.A9 is having an extent of 1.20 metres. It must be
remembered that, the purpose of producing Exts.A9 and A14 by the
plaintiffs was to prove that prima facie the KSRTC was also aware of the
existence of the way when necessary sanction for construction of the
building in the property of KSRTC was sought for. The larger issue to be
considered by this Court is as regards the attempt of the KSRTC to close
down the way during the pendency of the suits. It is true that while the
suits were pending, there were no interdictory orders. But that by itself
does not mean that before conclusion of the lis, the KSRTC was entitled to
close down the entire way, thereby disabling the plaintiffs to access the
plaint A schedule property by any means. The aforesaid act can only be
& 69 of 2020 17 2025:KER:73762
viewed as a deliberate attempt to deprive the rights of the plaintiffs. The
travesty of justice is that the appellants have not been able to access the
property for the past 18 years,
14. Viewed in the above perspective, this Court is not persuaded to
hold that the findings of the first appellate court are sustainable under law.
The finding of the first appellate court to reject Exts.A9 and A14 also
cannot be sustained. Consequently, in the light of what is discussed above,
this Court holds that the 2nd substantial question of law is also liable to be
answered in favour of the appellants. Accordingly, this Court finds that
the judgment and decree in A.S. No.6 of 2017 and A.S. No.7 of 2017
rendered by the Sub Court, Sulthan Bathery cannot be sustained. These
appeals are allowed by reversing the judgment and decree in A.S. Nos.6
and 7 of 2017 of the Sub Court, Sulthan Bathery, and restoring the
judgment and decree in O.S. Nos.33 of 2008 and 92 of 2008 of Munsiff
Court, Mananthavady. The appellants are entitled to the cost of these
proceedings.
Sd/-
EASWARAN S.
JUDGE
NS
