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KUNHAMUTTY v. MOHAMMED @ KUNHAVA - SA No. 206 of 1994  RD-KL 12853 (12 July 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 206 of 1994()
1. MOHAMMED @ KUNHAVA
For Petitioner :SRI.M.A.MANHU
For Respondent :SRI.M.K.DAMODARAN (SR.)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR, J............................................ S.A.No. 206 OF 1994 ............................................
DATED THIS THE 12th DAY OF JULY, 2007
Plaintiff in O.S.452 of 1986 on the file of Munsiff Court, Manjeri is the appellant. Defendants are respondents. Appellant instituted the suit seeking a decree for injunction in respect of the plaint schedule property Pandikkad Karuvarakundu Road is running east west through the northern boundary of the plaint schedule property. Veluvamparamba road starts from the northern Pandikkad Karuvarakundu road and runs along the western boundary of the plaint schedule property and thereafter turns towards the west and proceed to Olipuzha. The dispute in the suit is with regard to a narrow strip of land which lies to the east of olipuzha-Kolapuram road which turns towards the west.
2. According to appellant, he had surrendered a portion of his property towards that road but the disputed portion was not surrendered and it forms part of his property and he is entitled to construct a compound wall enclosing the said property contending that respondents are obstructing the same, appellant sought a decree for injunction. Respondents resisted the suit contending that the disputed portion does not form part SA 206 OF 1994 2 of the property of the appellant and is part of the existing road and therefore appellant is not entitled to the decree sought for. A Commissioner was appointed and the Commissioner submitted Ext.C1 report and Ext.C2 plan. The dispute in the suit is with regard to plot EOCPDIJNMLKB. According to the appellant, it forms part of his property. According to respondents, it forms part of the road. According to appellant, even plot BKLMNJIHGQF originally formed part of his property and he surrendered the part which is being used as a road only the disputed plot. The question is whether the disputed plot is being used as part of the road or is being enjoyed by appellant as part of his property. Relying on the report submitted by the Commissioner and the oral evidence, learned Munsiff entered a factual finding that the existing road lies to the west of CPD line as well as to the south of EOC line. It was found that appellant is not entitled to the decree for injunction in respect of that portion of the property. Appellant challenged the dismissal of the suit before Sub Court, Manjeri in A.S.1 of 1989. Learned Sub Judge on reappreciation of evidence, confirmed the findings of the trial court and dismissed the appeal. It is challenged in the second appeal. SA 206 OF 1994 3
3. The second appeal was admitted formulating the following substantial questions of law. 1)When the respondents are claiming that a portion of the property is public road without establishing a right of way whether respondents are entitled to obstruct the appellant from constructing a compound wall on boundary of his property. 2) Whether there is a public road and whether the disputed portion forms part of the public road and if not whether appellant is not entitled to the decree for injunction refused by the courts below.
4. On hearing learned counsel appearing for appellants and respondents it is clear there is no evidence to prove that there is a public road through the disputed property. But evidence establish that the disputed property as well as the admitted portion of the way is being used not only by respondents but others also as a road. The Commissioner could even note traces of tire marks, evidencing the fact that it is being used even for vehicular traffic. The factual finding entered by the courts below is that a portion of the property of the appellant including the disputed portion of the property is now used as road and appellant is not in possession of the property which lies SA 206 OF 1994 4 to the west of CPD line and to the south of EOC line. In the light of that factual finding, whether the disputed portion is part of public road or not, as it is being used as portion of the road, appellant is not entiteld to get a decree for injunction. Both the courts entered a factual finding that appellant has not established his possession of the disputed portion of the property. That factual finding cannot be interfered by reappreciating the evidence. In the light of the report submitted by Commissioner, it cannot be said that the disputed property has been in the possession of the appellant. Therefore appellant is not entitled to the decree sought for in the suit. As there is no merit in the appeal, it is dismissed. If at all appellant has got any right in the disputed property it is upto him to institute a proper suit for demarcation of the property with reference to the title deed and seek recovery of possession. Appeal dismissed.
M.SASIDHARAN NAMBIAR, JUDGElgk/-
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