The court determined that the plaintiff's apprehension of encroachment was unfounded given existing road status and affirmed previous dismissals based on proper judicial analyses.

JUDGMENT

This appeal is filed by the plaintiff aggrieved by the dismissal of the suit concurrently by the courts below.

2. Brief facts for the disposal of the appeal are as follows:-

Other properties including the plaint schedule property originally belonged to the father of the plaintiff and after his death, devolved up on his legal heirs and as per the partition deed document No.969/1976, the plaint scheduled property was allotted to the share of the plaintiff. The 1^st defendant is a resident of the northern side of the plaint schedule property and he is a member of the 2^nd defendant Grama Panchayat. The 1^st defendant had requested the plaintiff to relinquish certain properties for forming a road to his house, which was not accepted by the plaintiff. The refusal on the part of the plaintiff had instigated the 1^st defendant to collude with the 2^nd defendant Grama Panchayat and they are attempting to cut open a road to the property of the 1^st defendant. The plaintiff approached the 2^nd defendant and requested them to give the exact details of the proposal for formation of the road and he was told that the 1^st defendant is the person taking initiative for formation of the road but however, assured the plaintiff that no road will be formed through the plaint schedule property. However, on 27.02.2007, contrary to the assurance, an attempt was made to cut open a new road and thus the suit was instituted. The suit was resisted by the defendants contending that the road in question was already formed right from 1970 onwards and that it was found that the father of the plaintiff had surrendered a portion of the property. The 2^nd defendant also denied the suggestion that steps were taken by them for cutting open a new road as alleged in the plaint. On behalf of the plaintiff, Exts.A1 to A5 documents were marked and PW1 was examined. On behalf of the defendants, DW1 was examined and Exts.B1 to B6 documents were produced. Exts.C2 and C2(a) are the report and sketch of the Advocate Commissioner, who was examined as CW1 and the Surveyor was examined as CW2.

3. The trial court on appreciation of the oral and documentary evidence came to the conclusion that the defendants failed to prove that the road in question is a public road. The trial court also found that except the oral questioning of DW1, no other evidence is available to prove that the road in question is a public road. However, in the light of the specific report of the Advocate Commissioner that, the road is already in existence, the trial court declined the relief of injunction and accordingly dismissed the suit. Aggrieved, the plaintiff preferred A.S No187 of 2010. The First Appellate Court, on re-appreciation of the evidence found that going by Ext.B3, the present road is included as a public road in the Asset Register of the Panchayat wherein the road is referred as ‘Kettil Road’ as item No.54. Therefore, notwithstanding the dismissal of the appeal, the First Appellate Court concluded that the findings of the trial court that the road in question is not a public road is incorrect and accordingly while dismissing the appeal held that the road is a public road. Aggrieved by the dismissal of the appeal, the plaintiff has approached this Court in the present Second Appeal.

4. On 27.10.2015, this Court admitted the appeal on the following substantial questions of law.

a) Are not the judgments and decrees of both the courts below vitiated for not properly appreciating the observations made by the Commissioner in Exts.C1 and C1(a)?

b) Are not the judgments and decrees of both the courts below vitiated for not properly appreciating the plea