Rights over property pathways are negated when designated for public use, impacting private injunction claims.

JUDGMENT

The unsuccessful plaintiff is before this Court on appeal. The Second Appeal is filed challenging the judgment and decree, dated 20.12.2017 in A.S.No.33 of 2013 on the file of the Subordinate Court, Kuzhithurai, confirming the judgment and decree, dated 02.03.2019, passed in O.S.No. 392 of 2008 on the file of the I Additional District Munsif Court, Kuzhithurai.

2.For the sake of convenience, the parties are referred to, as per the litigative status before the trial Court.

3.It is the case of the plaintiff that the suit property originally belonged to one Jacob, the Great Grandfather of the plaintiff. A partition deed was executed on 21.06.1977 in the family of Jacob. In the partition deed executed, the suit 'A' schedule property, which was shown as Item No. 1 in the partition deed, was allotted to the share of the plaintiff's father, Nallathampi Evans, his brothers, Jacob Thampi Evans, Jose Linty Evans and Jacob Hentry Banu. The suit 'B' schedule property, which was the Item No.

1 in the 'B' schedule in the partition deed, was allotted to Bhanumathi Edison. The 10 feet common pathway, which is the suit 'C' schedule property/road, was allotted to both for 'A' schedule and 'B' schedule property in the partition deed.

4.It is the case of the plaintiff that 10 feet pathway was provided starting from Nagercoil-Thiruvananthapuram Main road in the north side of the 'A' schedule property till 'B' schedule property in the south. After the death of the plaintiff's father, the plaintiff and his mother inherited the property and they are carrying on business and further, they have also put up a residential building, which are all not the subject matter of the suit. The plaintiff's father had also put up a strong steel gate in the northern and southern side of the pathway and the plaintiff had, thereafter, laid the pathway by metals by using his own funds and maintained it, as a private road.

5.It is the further case of the plaintiff that in around November 2007, at the instigation of the second defendant, the first defendant attempted to convert the suit 'C' schedule road into a public road with a plan to link the private road with the panchayat pathway adjacent to suit 'B' schedule property. As such, the plaintiff issued a notice to the defendants and thereafter, had come up a suit seeking permanent injunction.

6.The defendants resisted the suit. The first defendant filed a written statement contending that the road measuring 7 cents was formed in the suit 'B' schedule property, which formerly belonged to Banumathy Edison. She had surrendered the right over the said road measuring 7 cents to Nalloor Panchayat by executing a gift deed, dated 12.12.2007. Subsequent to the gift being executed, the Panchayat had passed a resolution on 04.01.2008 permitting to accept the road, as Panchayat road. After the same was accepted, as a Panchayat road, the Panchayat had also passed a resolution, dated 08.02.2008 and they decided to convert the same into a concrete road, for which, a work order was approved and issued and the work was also started and completed in the year 2008. It is the specific case of the first defendant/Panchayat that no work was done within the suit 'C' schedule property. The Panchayat had done the work on the road, which belongs to the Panchayat and lies on the south of the 'C' schedule road, which was gifted to Panchayat by Banumathy Edison. As such, the plaintiff has no cause of action to file a suit, as against the first defendant.

7.The second defendant filed a separate written statement contending that the plaintiff is not the absolute owner of the suit 'C' schedule road. All the owners in suit 'A' and 'B' schedule properties had right over the suit 'C' schedule road. The road, in which, the plaintiff is asse