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Judgment
A. Badharudeen, J
Resentful plaintiff Nos.2 and 4 in OS NO.290/1990 on the files of Principal Sub Court, Thiruvananthapuram are the appellants herein and they assail decree and judgment dated 06.08.2018 in the above case as well as decree and judgment in A.S.No.143/2018 on the files of Additional District Court, Thiruvanthapuram. The respondents herein are 1st defendant, additional defendants 2 to 6 and 3rd plaintiff.
Heard the learned counsel appearing for the appellants/plaintiffs 2 and 4, defendants 2, 4, 6 and 8 and the learned standing counsel appearing for the 1st defendant/1st respondent, City Corporation, Thiruvananthapuram.
The parties in this appeal will be referred as `plaintiffs' and `defendants' with reference to their status before the trial court.
The case of the plaintiffs is that plaint A Schedule property and B Schedule forms part thereof are properties absolutely owned and possessed by them on the strength of document nos.3118/1953 and 690/1979. According to the plaintiffs, plaint B schedule item now lying as a private pathway is part and parcel of plaint ‘A’ schedule property obtained by the plaintiffs as per their title deeds. Plaintiffs would contend that plaint B schedule is a private pathway set apart by the plaintiffs for the use of plaintiffs and 5 other persons, who subsequently got arrayed as additional defendants in the Suit. Apart from the plaintiffs and 5 others, no others have any manner of right over plaint B schedule and the same is absolutely a private pathway. On the above premise, plaintiffs sought the relief of permanent prohibitory injunction against defendants restraining them from trespassing upon the plaint schedule property and from interfering with the right of plaintiffs over plaint B schedule pathway.
The 1st defendant City Corporation of Thiruvananthapuram filed written statement and contended that the way is one being used by 5 persons admitted in the plaint as well as the people in the locality and, therefore, the same is a public road. The alleged attempt made by the City Corporation for the maintenance of the road was denied. It was also contended that the 1st defendant could not carry out any maintenance in the public road unless and until it is vested with the corporation.
Defendants 2 and 5 filed written statement and raised contentions, inter alia, that plaint B schedule is a public pathway in existence, maintained by the City Corporation. The specific plea raised in paragraphs nos.6 and 7 are as under:-
There exists no property which match up with description given in as the plaint. The plaintiffs had filed another suit OS 23/97 in respect of the property scheduled in the present plaint. The said suit was dismissed. The plaintiffs had set up a counter claim in O.S.886/96 seeking declaration of their title to the land. The said claim was also dismissed. The extent of the land which is scheduled in the plaint A schedule was incorrect. The description of the plaint B schedule was false. The B schedule pathway is a public pathway. The plaintiffs had made an attempt to encroach upon the public pathway; the said attempt was thwarted by the residents of the locality. The supplemental 2nd defendant had purchased 4 cents of property from the 1st plaintiff as per sale deed No.1270(83). The said document would disclose the existence of a pathway on the eastern side of the defendant's property. The plaint B schedule does not form part of the plaint A schedule. The plaintiffs do not have title to and possession of the entire extent of land scheduled in the plaint. The allegation that the said pathway was formed for the purpose of providing access to the land which was sold by the plaintiffs was fallacious. The allegation that the 1st defendant had not got any right to carry out maintenance of the said pathway was erroneous. It prayed that the suit be dismissed.
The 6th defendant was added at the instance of the plaintiffs.
In an earlier round of litigation, the present Suit was dismissed. Then the matter was taken in appeal and the Additional District Judge remanded the matter for fresh disposal after identifying the plaint B schedule. Though the remand order was challenged before this Court, the order was confirmed. Thereafter, on appreciation of evidence, confined to that of PW1, Exts. A1 to A6, DW1, B1 to B2, CW1, C1 and C1(a), the trial Court adjudicated the matter and dismissed the Suit. First Appeal therefrom also was dismissed.
At the time of admission of this matter, my learned predecessor, as per order dated 10.11.2022, framed the following substantial questions of law:-
Whether the finding of the courts below that plaint B schedule property is a public pathway is legal?
On whom the burden of proof to prove whether pathway is public or private lies?
Whether the courts below went wrong in holding that the property use of B schedule by nearby residents, would make it a public way amenable to the jurisdiction of the Corporation Thiruvananthapuram, authorizing them to maintain the said pathway?
Whether acceptance of commission report and sketch by the courts below is legal and proper?
In this matter, the Trial Court as well as the Appellate Court relied on the commission report and plan to hold that plaint A schedule property did not include plaint B schedule pathway, as per the title deeds of plaintiffs, marked as Ext.A1 (gift deed of the year 1953) and Ext.A3 (sale deed of the year 1979). It was reported by the Commissioner that B schedule property now lying as a way is shown as poramboke land in the resurvey plan and records. On perusal of C1(a) Plan, the same would suggest that, Commissioner located plaint A Schedule property in Re.Sy.No.129 having an extent of 36.25 Ares inclusive of item nos.1, 2 and 3 of A Schedule as A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, A plot. Similarly, the Commissioner located B schedule property in Re.Sy.No.125 as having an extent of 6.58 Ares as I, A, S, R, Q, P, O, B5, B4, B3, B2, B1, A10, A9, A8, A7, A6, A5, A4, A3, A2, A1, Z, Y, X, W, W, V, U, T, A plot. It was reported by the Commissioner further that, property having an extent of 1.04 Ares in possession of a 3rd party and property having an extent of 2.17 Ares as part of B schedule way and the plot P having an extent of 1.07 Ares also as part of the plaint B schedule. It was also reported that 2.30 Ares of property in Re.Sy.No.125 forms part of B schedule and the same is lying as Corporation road.
It is argued by the learned counsel for the plaintiffs that, going by the contentions raised by the Corporation (1st defendant) in the written statement, the Corporation has no case that B schedule is vested with the Corporation. It is also pointed out that, going by the contentions raised in the written statement of defendant Nos.2 to 5 also, though they are claiming right over B schedule describing the same as a public road, their contention is that they got the same as per the respective title deeds mentioned in paragraph nos.6 and 7 of their written statement. It is also pointed out that the documents mentioned in paragraph Nos.6 and 7 are not produced before the court. It is also submitted by the learned counsel for the appellants/plaintiffs 2 and 4 further that the Commissioner had not properly identified the property on the strength of title deeds and the Commissioner located the property relying on the resurvey plan and records. He also submitted that, even though the Trial Court observed that no objection seen filed by any of the parties to the Commissioner’s report and plan, the Appellate Court rightly found that plaintiffs filed objection and the Appellate Court also discussed the objection in detail, though ultimately the first appeal was dismissed negating the objection.
According to the learned counsel for the appellants, since the properties were not properly identified, in view of the directions issued by the First Appellate Court, at the time of remand, properties would require measurements and identification on the strength of Exts.A1 and A3 title deeds of the plaintiffs, to address the contentions raised by the plaintiffs. In order to appraise this contention, the learned counsel read the relevant paragraphs of the judgments of the Trial Court as well as the Appellate Court and fervently submitted that those observations are unwarranted in a case of simple injunction, where the plaintiffs did not oppose use of B schedule by the additional defendants also.
The learned counsel appearing for the party respondents jointly argued that, as per the available materials with particular mention to the evidence of DW2 and Ext.C1 and C1(a), the contention raised by the plaintiffs to the effect that plaint B Schedule is a part of A schedule could not be found and therefore the trial court and appellate court rightly non-suited the plaintiffs.
In this matter, in view of filing of two earlier litigations, covered by Ext.A4 judgment in OS No.1128/99 and B1 judgment in OS NO.886/96, plea of res-judicata was raised by the defendants. But for want of evidence, inclusive of copies of plaints and written statements, the trial court and the appellate court negatived the plea of res-judicata. The defendants also did not dispute the said finding. Even-otherwise, question of res-judicata could not be decided since the relevant pleadings in the previous case are not placed before the Court to identify the nature of dispute, the subject matter and the matter in issue.
Coming to the vital issue as to whether the plaintiffs established right over B Schedule way as one form part of A Schedule, mainly for the use of plaintiffs as well as 5 persons (the additional defendants), plaintiffs rely on their title deeds Exts.A1 and A3, which are not in dispute.
The question is whether B Schedule is part of A Schedule, as contended by the plaintiffs and the said contention is proved by evidence? In turn, the substantial questions of law raised and extracted herein above arise for consideration.
As things stand now, as per the identification done by the Commissioner in C1 and C1(a), in no way, one could find that B schedule forms part of A schedule. Whereas B schedule is an item of property in Re.Sy.No.125 lying as Government poramboke/road as per Exts.C1 and C1(a). That apart, in Ext.B2, the certified copy of town survey field register, tendered in evidence by examining the 2nd defendant as DW1, also B schedule is described as Government poromboke/road. Even though DW1 had filed proof affidavit, he did not offer himself for cross-examination and thereby, the Trial Court and the Appellate Court eschewed his evidence but relied on Ext.B2 as a public document to hold that 21.44 Ares of property in Sy.No.142/B-3 in Re.Sy.No.125 of Pattam Village as Government Poramboke/road. The acceptance of Ext.B2 is strongly opposed by the learned counsel for the plaintiffs since right of the plaintiffs to cross-examine DW1 as regards to Ext.B2 was denied.
The trial court as well as the appellate court relied on Ext.B2, since the same is a public document, admissible in evidence without formal proof thereof. The above view taken by the trial court and appellate court could not be faulted. Ext.B2 would suggest that B schedule property is lying as Poramboke land/road and the same is owned by the Government. The Commissioner also reported so, as already stated. Thus as per the available evidence, it could not be held that plaint B schedule is part of A schedule and the plaintiffs not made any attempt to measure the property on the basis of old survey plan or litho plan to establish the same.
Now the Question is, merely because in Ext.B2 the status of B schedule property including more extent is shown as Poramboke land/road, the same would give B schedule the status of a public road, when the 1st defendant City Corporation denies vesting of any such road with the Corporation and the alleged attempt to tar the same? The learned counsel for the 3rd defendant pointed out that in Column No.19 of Ext.B2 the owner of the property is shown as Kerala State and in Column No.22, the same is shown as road.
In this connection, a Division Bench judgment of this Court reported in [2017 SCC OnLine Ker 7182 : 2015 (3) KHC 199 : 2015 (2) KLT 768 : ILR 2015 (2) Ker. 976], Mariam Beevi v. Athirampuzha Grama Panchayat assumes significance. In para.13 to 17 it is stated as under:
“13. The learned Single Judge after considering the rival contentions with reference to Section 2(xxxv) of the Panchayat Raj Act, which define the term ‘public road’, came to the conclusion that a public road as defined under the said clause of Section 2 of the Act is quite expansive. Therefore, any street, road,square, port, alley, passage, cart-tract, foot-path or riding path, over which the public have a right of way, even if it is not a thoroughfare, is a public road.
The learned Single Judge, after referring to the provisions under Section 169 of the Panchayat Raj Act, which begins with a non obstante clause concluded that the expression ‘not being private property appertaining thereto’ in sub-section (1) of Section 169 exempts only private property adjacent to any public road, but not the very road, which always has an element public utility attached to it; be it private or public. Further, the road need not be thoroughfare and that the expression ‘Village roads, paths and lanes’ used in clause (c) of sub-section (1) of Section 169 does not specify whether they are private or public.
After referring to the observation made by Tom Bingham in his book ‘the Rule of law’ (page 75, Penguin, 2011), the learned Single Judge observed that, if the pathway is within the confines of a house, however, sprawling it may be, whatever lies therein may be private in character and private in use. Once it is meant to connect somebody else's, thus becoming part of a net work of roads or paths, however short or insignificant its extent and reach may be, it is to subserve the public purpose of providing access to and fro.
The learned Single Judge has also held that once a property assumes the character of a road or pathway having the potential of being a public utility, it ceases to have any exclusivity.
The learned Single Judge has also noted that, if a piece of land is to be plotted out, it is the mandate of the Statute that proper roads and other amenities are provided. Just because the whole of the property once was private, it could not be said that it would bear the same character forever.”
That apart, Section 207 of the Kerala Municipality Act also assumes significance.
On reading the above provision and the gist of the above decision, it has to be held that any street, road, square, port, alley, passage, cart-tract, foot-path or riding path, over which the public have a right of way, even if it is not a thoroughfare, is a public road. If a pathway is within the confines of a house, however sprawling it may be,whatever lies therein may be private in character and private in use. Once it is meant to connect somebody else's, thus becoming part of a network of roads or paths, however short or insignificant its extent and reach may be, it is to sub-serve the public purpose of providing access to and fro. Once a property assumes the character, say, a road or a path, having the potential of being a public utility, it ceases to have any exclusivity, for the individual interest is to yield to the common good. Even though the judgment in Mariam Beevi's case (supra) was assailed before the Apex Court, the Apex Court also dismissed the SLP.
In the instant case, no evidence forthcoming to see that plaint B schedule is a public road vested with City Corporation or PWD or State Highway or National Highway. But as per Ext.C1(a), plaint B schedule is located as property having an extent of 6.58 Ares in Re.Sy.No.125 lying as Government poramboke/road and as per Ext.B2 also the same is stated as a Government poramboke/road, as pointed out by the learned counsel for the defendants. On no stretch of imagination, the available evidence would suggest that plaint B schedule is part of A schedule and plaintiffs, on whom the burden lies, miserably failed to prove the same. To the contrary, the status of B schedule is that of a public pathway as per Ext.C1(a) and Ext.B2, though the same is not a road vested with City Corporation or PWD or State Highway or National Highway.
Coming to the 4th substantial question of law, even though the Trial Court observed that no objection filed to the commissioner’s report and plan, the Appellate Court negated the contention and addressed the objections filed by the plaintiffs to the Commissioner’s report. Similarly, in para No.27(a) of the first appellate Court judgment, the first Appellate Court addressed the objections as under:-
Now I shall look into the question whether the plaintiffs have proved the said objections. Concededly, the defendants have examined the commissioner who had submitted Ext.C1 and C1(a) to the trial court. The version given by DW2 will clearly suggest that the Surveyor who had been appointed by the court had assisted him in measuring out the land and that the commissioner had surveyed the land as per the direction. According to him, it was an bituminous road and therefore, he had observed in the report that it is a way maintained and owned by the City Corporation. In the cross examination, he had testified that he had perused the title deeds in respect of the land scheduled in the plaint and that he had not perused the Town Survey Field Register.
It is stated that plaintiffs had filed objections to the Commissioner’s report and gist of the objections also has been extracted by the first Appellate Court as under:-
The commissioner has not reported the actual facts regarding the matters sought to be ascertained; the report does not disclose the actual lie and nature of the plaint A & B schedule properties; the observation made by the commissioner to the effect that plaint B schedule way belongs to the Corporation baseless. Therefore, according to the plaintiffs, the report is defective.
The first appellate Court has rightly found that the Commissioner filed Ext.C1 report and Ext.C1(a) plan as per the legal mandate and objection raised to unsustain Ext.C1 and C1(a) could not yield.
Going by the objections, it has been stated that the Commissioner failed to disclose the actual lie and nature of the plaint A and B schedule properties and the observation of the Commissioner that B Schedule way belongs to the Corporation is baseless.
It is true that the plaintiffs challenged the commission report and plan and the objection raised in this regard were found against the plaintiffs by the first appellate court and the said finding appears to be convincing. Therefore, it could be held that plaint B schedule, now identified by the Commissioner and reported as one lying as a road, is not part of plaint A schedule and its status is that of public road vested with the Government. The first substantial question of law, answered thus. Similarly, the second substantial question of law answered holding that the burden of proof of plaint B schedule as private pathway is on the plaintiffs and the burden to prove the same as a public road is that of the defendants.
In view of the above discussion, this Court is of the view that, the concurrent verdicts of the Trial Court and the first appellate court do not require any interference by this Court in any manner, since the same are only to be confirmed.
Accordingly the Second Appeal stands dismissed.