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Judges : PAREED PILLAY
THOMMAN - Appellant
Versus
KURIAKO - Respondent
Case No : S.A. No. 266 of 1982
Decided On : 02/09/1988
Advocates Appeared :
George Varghese Kannanthanam; For Appellant V. Parameswara Menon; Joseph J. Therattil; For Respondents
Dedication - Public Road - 1121 M.E - J. Anderson v. Juggodumba Dabi (VI Calcutta Law Reports 282), Laxman v. Tukia (AIR. 1918 Nagpur 166), Vibudapriva Thirtha Swamy v. Eroof Sahib (XXXV Madras 28), Usman v. Rahmat (AIR 1936 Labore 797), Panchanan Ray v. Fazlur Rahman (AIR 1942 Calcutta 505), Municipal Committee, Karnal v. Muhamad Ruston Alikhan (AIR. 1916 Lahore 223), Surendra Nath v. Narendra Kumar (AIR. 1935 Calcutta 413)
Fact of the Case:
The plaintiff succeeded in the trial court but the lower appellate court dismissed the suit, stating that the plaintiff failed to prove dedication of the road by the defendants. The evidence overwhelmingly established the existence of the road.
Finding of the Court:
The trial court was justified in holding that the road is a public road and that the defendants cannot interfere with it. The Sub-Judge erred in allowing the appeal. The judgment and decree of the Sub-Judge in A. S.41 of 1980 are hereby set aside and that of the trial court are confirmed. The Second Appeal is allowed with costs.
Issues: The main issue was whether the plaintiff proved dedication of the road by the defendants. The court also considered the evidence of the existence of the road and the maintenance by the Panchayat.
Ratio Decidendi: The court relied on various legal principles related to dedication of public roads, including the presumption of dedication from long and open user by the public, the absence of a fixed minimum period to prove dedication, and the significance of maintenance by the local authority or government.
Final Decision: The Second Appeal was allowed, setting aside the judgment and decree of the Sub-Judge and confirming that of the trial court.
Certainly. Based on the provided legal document, the key points are as follows:
The main legal principle established is that a public road can be presumed to be dedicated through long-standing, open, and continuous use by the public, even if there is no explicit proof of dedication by the landowner (!) (!) (!) .
Maintenance of the road by a local authority or government is a significant factor supporting the presumption of dedication, and such maintenance can imply acceptance and recognition of the public’s right to use the road (!) (!) .
Dedication does not necessarily require a formal deed or written instrument; it can be inferred from the acts of user and the conduct of the landowner over a long period (!) (!) (!) .
The period of user required to establish dedication is not fixed; long and uninterrupted use by the public, especially when openly exercised and acquiesced to by the landowner, is sufficient to raise a presumption of dedication (!) .
The existence of a public road can be established through evidence of its use, the presence of markers such as fences or tyre marks, and records maintained by local authorities, regardless of whether the road begins or ends in a public place (!) (!) (!) .
Even if the road does not connect two public places directly or terminates in a private or inaccessible area, it can still be considered a public road if the evidence supports its use by the public for access purposes (!) (!) .
The court emphasized that the burden of proof regarding dedication can be met through inference from long-term user and maintenance, and explicit proof of dedication is not always necessary (!) (!) .
The judgment confirmed that the existence of the road since a specific historical period and the evidence of its maintenance by the Panchayat supported the conclusion that it is a public road, and the court rightly set aside the appellate decision in favor of the trial court’s findings (!) .
Please let me know if you need a more detailed analysis or specific legal advice related to this case.
1. Plaintiff who succeed in the trial Court and rooted in the lower appellate Court is the appellant. The Sub Judge allowed the appeal and dismissed the suit holding that the plaintiff has failed to prove dedication of the road by the defendants.
2. Existence of the plaint schedule road since 1121 M.E is spoken to by Pwl. In an earlier suit (O.S. 50 of 1958) with respect to the very same road pw. 3, an advocate commissioner had filed Exts. A-2 and B-1 reports. pw. 3 has reported about the existence of the road in Ext. A-2 and estimated its age as 10 years. Along with Ext. A-2 report pw. 3 bad also filed a sketch showing the location of the road. in the present
case pw. 7 commissioner has prepared Ext. C-1 report and Ext. C-1(a) sketch. The sketch Ext. C-1(a) shows that the road branches from Kaliyar-Koduveli road and goes south up to Manchodu nilam. It is in evidence that thereafter the road passes through paddy fields leading to Neyyassery. Of course, the width of the road when it passes through the paddy ffields is narrower than the road up to Manchodu nilam. pw. 7's evidence shows that the road separates the properties on either side by kayalas and fences. pw. 7 also noted the presence of tyre marks of vehicles up to the northern boundary of Manchodu nilam. Ext. C-1 report has given elaborate details of the road,
3. Apart from the commission report there is also the evidence of pw. 2, the executive officer of Kodikulam Panchayat who spoke about the plaint schedule road. Ext. A-3 is the road register maintained by the Panchayat. Item No. 17 in Ext. A-3 is the disputed road. Pw. 2 stated that this road is maintained by the Panchayat. pw. 5 President of the Panchayat since 1964 stated that on the basis of a mass petition that the Panchayat should maintain the road, it undertook the maintenance since 1958. Pw. 6 deposed that the persons of the locality with the consent of the land owners constructed the road up to Manchodu nilam and that he also participated in the construction works. The evidence unflinchingly establishes the existence of the road.
4. The question to be considered is whether the Sub Judge was justified in dismissing the suit overlooking the avalanche of materials regarding the existence of the public road on the ground that evidence is lacking with regard to its dedication. In other words, can the suit be rejected solely on the ground that there is no evidence of dedicate on.
5. The right to enjoy a highway is a free right. Rights over highways are rights in gross unappurtenant in any dominant tenement. Even in a case where evidence is lacking with regard to the dedication and where there is ample evidence with regard to the existence of road which is used by the public it can be inferred that the owners of the adjacent properties intended to make over to the public the right to use their land as a public highway. In J. Anderson v. Juggodumba Dabi (VI Calcutta Law Reports 282) it is held as follows:
"In order to establish that a road is a public road, it is sufficient if acts of user by the public are shown to have been acquiesced in by the owner of the land over which the road passes, and that those acts are of such a character as to warrant the inference that the owner intended to make over to the public the right to use the land as a public highway."
6. High way may be created either by statute or it may come into existence through dedication by the landowner allowing the public the right to pass or re-pass over his land. Dedication implies a gift. But it is not necessary that the dedication must be made by a deed or by written instrument. The dedication though not made in express terms may well be presumed from uninterrupted use by the public of the right of way claimed. More often, it can be presumed from custom and user than from any definite act of the owner of the land. Animus didicandi on the part of the land owner has to be proved in a case where plaintiff relies on dedication. But in a case wh
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