V.V. Sunny vs V.V. Paulose and Others

P.B. Suresh Kumar, J.—1. The plaintiff in a suit for injunction, both prohibitory and mandatory, is the appellant in this second appeal.

The plaint A schedule property belongs to the plaintiff. The plaint B schedule is a road. According to the plaintiff, the plaint B schedule is a public road commencing from Arakkunnam West Colony road and terminates at the western boundary of the plaint A schedule property. Defendants 1 and 3 are the brothers of the plaintiff. The second defendant is the wife of the first defendant. The properties lie on the north of the plaint A schedule property and the plaint B schedule road belongs to defendants 1 and 2. The case of the plaintiff in the plaint is that the plaint B schedule road is a public road and that the defendants are causing obstructions to the plaintiff in the matter of using the plaint B schedule road. The plaintiff therefore claimed a decree of permanent prohibitory injunction restraining the defendants from causing obstructions to the plaintiff in the matter of using the plaint B schedule road as a public road to the plaint A schedule property. A decree of mandatory injunction directing the defendants to remove the obstructions caused by them to the user of the plaint B schedule road was also sought in the suit. The defendants resisted the suit by filing a written statement. The contention raised by the defendants in the written statement was that the property described as the plaint B schedule road is part of the property owned by the defendants 1 and 2 and lies on the north of the plaint B schedule road. The case of the plaintiff that the plaint B schedule is a public road was denied by the defendants. The trial court, on an elaborate consideration of the materials on record, came to the conclusion that the plaint B schedule road is part of the property of defendants 1 and 2 covered by Ext. B3 assignment deed in their favour. Consequently, the suit was dismissed. Though the plaintiff took up the matter in appeal, the appellate court, on a reappraisal of the materials on record, confirmed the decision of the trial court. The plaintiff who is aggrieved by the concurrent decisions against him has thus come up in this second appeal.

Heard the learned counsel for the appellant.

The learned counsel for the appellant contended, relying on the deposition of his father in an earlier suit namely, O.S. No. 2037 of 1998 filed by one of their siblings, that plaintiff has purchased the plaint B schedule road from the first defendant for consideration for the purpose of forming the road, at the time of his marriage. He also contended, relying on the joint written statement filed by the plaintiff and first defendant in the said suit, that the plaint B schedule road was formed by the plaintiff. According to the learned counsel, the plaint B schedule road was though one acquired and formed by the plaintiff, he dedicated the same later to the general public and thus it became a public road. Relying on the evidence tendered by Pws.2 and 3, it was also contended that they have also contributed portions of their property for widening the plaint B schedule road and they are using the same to buttress his case that the plaint B schedule is a public road. The learned counsel also brought to my attention a few photographs produced by the plaintiff in this second appeal to substantiate his case that the plaint B schedule is a public road.

At the outset, it is to be noted that the case now set up by the plaintiff that the plaint B schedule road is one acquired and formed by the plaintiff and that he had dedicated the same to the general public and thus it became a public road is not a case pleaded by the plaintiff in the plaint. A perusal of the plaint indicates that the specific case pleaded by the plaintiff in the suit is that the plaint B schedule road is a public road. It is also pleaded by the plaintiff in the plaint that the plaint B schedule road was formed by the people residing on either side of the road by dedicating portions of the properties owned by them. Ext. C2 is the report and Ext. C2(a) is the plan prepared by the Advocate Commissioner appointed in the suit with the help of the concerned Village Officer. The Advocate Commissioner who prepared Ext. C2 report and Ext. C2(a) plan was examined in the suit as CW1. The appellate court found from Ext. C2 report and Ext. C2(a) plan as also from the evidence of CW1 that the plaint B schedule road is part of the property covered by Ext. B3 assignment deed in favour of defendants 1 and 2. There is nothing on record to indicate that defendants 1 and 2 have dedicated the plaint B schedule road for the public use. Merely for the reason that the road continues beyond the property of defendants 1 and 2 and that the people on the side of the road beyond the property of defendants 1 and 2 are using the same as a public road as argued by the plaintiff relying on the evidence of Pws.2 and 3, it cannot be contended that the part of the road which is found to be the part of the property owned by defendants 1 and 2 has been dedicated by them for the public use.

Further, as noted above, the recital in Ext. A4 written statement filed by the plaintiff and first defendant in O.S. No. 2037 of 1998 is only that the plaint B schedule road has been formed by the first defendant. Assuming that the plaint B schedule is a road formed by the plaintiff, it cannot be said that the same would become his property on account of the said conduct alone so as to dedicate the same for the use of the general public. Likewise, what is stated by the father of the plaintiff in Ext. A6 deposition in O.S. No. 2037 of 1998 was that the plaint B schedule road has been purchased by the plaintiff from the first defendant for consideration. There is nothing on record to indicate that the property shown as the plaint B schedule road has been purchased by the plaintiff. Ext. A6 would only prove that the father of the plaintiff had deposed in O.S. No. 2037 of 1998 that the plaintiff has purchased the property shown as the plaint B schedule road, but the same is not proof for the purchase of the property shown as plaint B schedule road by the plaintiff. As such, there is no basis for the contention that the plaintiff has purchased the property shown as the plaint B schedule road from the first defendant, especially when the said property belongs to the second defendant also. If the plaintiff has not acquired any right over the property shown as the plaint B schedule road, it cannot be contended that he has dedicated the same for the use of the general public.

The additional documents produced by the appellant in this second appeal along with I.A. No. 2602 of 2015 are few photographs. The said photographs would certainly indicate that there exists a road which terminates at the residence of the plaintiff. As indicated above, merely for the reason that there exists a road which terminates at the residence of the plaintiff through the property of defendants 1 and 2, it cannot be said that the same is a public road, especially when the parties are close relatives and the plaint schedule property is the property where the family house of the parties is situated. It is all the more so, since the defendants have a specific case that their access to a portion of the property lying at a lower level on the north of the plaint A schedule property is through the plaint A schedule property.

In the aforesaid facts and circumstances, I do not find any merits in the second appeal. There is no question of law much less any substantial question of law involved in this second appeal. The second appeal is therefore dismissed in limine.