VARKEY ALIAS v. NONE

Judgment

2. VARKEY ALIAS, AGED 56 YEARS, S/O.VARKEY, PUTHAYATHU HOUSE, ADIMALI KARA, MUNNAMKANDAM VILLAGE, DEVIKULAM TALUK. VARKEY VARGHESE, AGED 59 YEARS, S/O.VARKEY, PUTHAYATHU HOUSE, ADIMALI KARA, MUNNAMKANDAM VILLAGE, DEVIKULAM TALUK. BY ADVS. SRI.K.RAMAKUMAR (SENIOR ADVOCATE.) SRI.SREELAL WARRIER RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: --------------

5. P.T.THOMAS, S/O.THOMAS, AGED YEARS, KANJIRATHINKAL HOUSE, ADIMALI KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. P.T.SEBASTIAN, S/O.THOMAS, AGED 48 YEARS, KANJIRATHINKAL HOUSE, ADIMALI KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. K.T.CHACKO,S/O.THOMAS, AGED 53 YEARS, KANJIRATHINKAL HOUSE, ADIMALI KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. JOSEPH, S/O.THOMAS, AGED 43 YEARS, KANJIRATHINKAL HOUSE, ADIMALI KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. MATHEW THOMAS, S/O.THOMAS, AGED 9 YEARS, KANJIRATHINKAL HOUSE, ADIMALI KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. (*)6. MATHEW JOHN, S/O.JOHN, AGED 46 YEARS, EDAPPARA, ADIMALI KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK (DIED. LRS IMPLEADED) ADDITIONAL R7 TO R10: ADDL.R7. ADDL.R8. MRS.VALSA, W/O.LATE MATHEW JOHN, AGED ABOUT 48 YEARS, RESIDING AT EDAPPARA HOUSE, KUTHUKUZHI P.O., AYYANKAVU, VAYANASALA PADI, KOTHMANGALAM, ERNAKULAM DISTRICT. MS.ANJU, D/O.LATE MATHEW JOHN, AGED ABOUT 23 YEARS, RESIDING AT EDAPPARA HOUSE, KUTHUKUZHI P.O., AYYANKAVU, VAYANASALA PADI, KOTHMANGALAM, ERNAKULAM DISTRICT. RSA NO.606/2009 2 ADDL.R9. ADDL.R10. MS.ANJALI, D/O.LATE MATHEW JOHN, AGED ABOUT 20 YEARS, RESIDING AT EDAPPARA HOUSE, KUTHUKUZHI P.O., AYYANKAVU, VAYANASALA PADI, KOTHMANGALAM, ERNAKULAM DISTRICT. MS.ISWARYA, D/O.LATE MATHEW JOHN, AGED ABOUT 18 YEARS, RESIDING AT EDAPPARA HOUSE, KUTHUKUZHI P.O., AYYANKAVU, VAYANASALA PADI, KOTHMANGALAM, ERNAKULAM DISTRICT. (*)ADDL.R7 TO R10 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 6TH RESPONDENT AS PER ORDER DATED 10.02.2011 IN IA NO.2191/2010. BY ADV. SRI.JACOB ABRAHAM BY ADV. SMT.KOCHUMOL KODUVATH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A. No.606 of 2009 -------------------------------------- Dated this the 11th day of December, 2012. JUDGMENT The following substantial questions of law are framed in this second appeal arising from the judgment and decree of the Additional District Court, Thodupuzha in A.S.No.257 of 2004 confirming judgment and decree of the Munsiff's Court, Devikulam in O.S.No.241 of 1999 and dismissal of the counter

claim filed by the 2nd appellant/2nd defendant: i. Is it correct for the courts below to have allowed a petition purportedly filed under Order XXIII, Rule 1(3) of the Code of Civil Procedure (for short, “the Code”) and that too, on the affidavit filed by the counsel for the plaintiffs without a proper prayer as mandated under the above provision and without affording an opportunity to the defendants to file objections for the same? ii. Is not the suit from which the above second appeal arose barred under Order XXIII, Rule 1(4) of the Code? iii. Can a court grant permission for withdrawal with liberty to file a fresh suit under Order XXIII, Rule 1(3) of the Code without stating the reasons for such grant or without stating as to which condition under Order XXIII, Rule 1(3) is satisfied? RSA No.606/2009 2 iv. Is not an order granting leave under Order XXIII, Rule 1(3) of the Code without any reasoning bad in law? v. Is not absence of a specific grant of the specific prayer under Order XXIII, Rule 1(3) of the Code of Civil Procedure a rejection for the purpose of Order XXIII, Rule 1(4)? vi. Can a court grant permission for withdrawal with liberty to file a fresh suit under Order XXIII, Rule 1(3) of the Code of Civil Procedure where the affidavit or the application for the purpose does not disclose any condition prescribed under Order XXIII, Rule 1(3) of the Code? vii. Is it correct for the courts below to find that the plaint A schedule road is a public road or a Panchayat road simply relying on Exts.A1, A3 to A15, B33 and B34 although they do not conclusively prove the same? viii. Is it correct for the courts below to overlook Exts.B4, B25 to B27 which would clearly show that the plaint A schedule road either forms part of defendant's property or is a private road? ix. Is it correct for the courts below to find that the defendants failed to prove that the plaint A schedule road is a private way despite Exts.B4 and B25 to B27? RSA No.606/2009 3 x. In any event is it correct for the courts below to have found that the road in question is a public road vested in Adimali Panchayat although defendants had a case that the records of the Panchayat and the Village had been fabricated by its respective staff and the matter is being investigated by the Director of Vigilance and Anti Corruption Bureau, Thiruvananthapuram and no final decision had been arrived at by the said authority? Or in the alternative is it correct for the courts below not to have entered into a finding as to the fabrication of the documents by the Panchayat authorities at the instance of the plaintiffs on the basis of the available evidence before the courts? xi. Is not a civil court competent to decide an issue simply before a matter connected therewith is being investigated by another competent authority? xii. Is it correct for the courts below to find that the burden of proof was on the defendants to show that plaint A schedule property is their private property? xiii. The courts below have erred in assuming that the defendants had taken a contention that the plaint A schedule property was not a road at all. The courts below ought to have noted that the case of the defendants was only that it was not a road of the nature alleged by the plaintiff and that it was a private road for the purpose of the defendants? RSA No.606/2009 4 xiv. Where an issue relating to question of fact or law arises for consideration in the civil proceedings before it and also in a criminal proceedings in another competent court to decide the same, can the civil court leave the question open by non-indulgence on the ground that the same can be decided in the criminal court and decide the proceedings before it without entering a finding on the question before it?

2. The respondents/plaintiffs sued the appellants and the deceased 3rd defendant for a declaration of their right of access through the plaint A schedule described as a way having width of 12 feet originating from the National Highway 49 (for short, “the NH 49”) and leading to the approach road to the private bus stand at Adimali, and for a decree for prohibitory injunction to restrain the appellants and the deceased 3rd defendant from causing obstruction to their user of the said road. The respondents claimed that the plaint B to G schedules belong to them as per Exts.A2 to A7, assignment deeds executed by the 1st appellant through his power of attorney holder and that at the time of execution of Exts.A2 to A7, they were given a right to use the plaint A schedule for access to the plaint B to G schedules and thus, they have acquired a right of easement by grant. It is also stated that the public at large are using the plaint A schedule and as such also the respondents are entitled to make use of the plaint A schedule.

3. In the written statement filed by appellants 1 and 2 and the counter claim filed by the second among them, they denied the existence of plaint A schedule and claimed that it is part of the 2.5 acres each belonging to them. They also claimed that access to the plaint B to G schedules is from the RSA No.606/2009 5 National Highway on the northern side. It is further contended that the suit is not maintainable in view of the dismissal of O.S. No.284 of 1995. Claiming that the disputed plaint A schedule forms part of the 2.5 acres belonging to the 2nd appellant as well, he raised a counter claim for a decree for prohibitory injunction against the respondents.

4. In answer to the counter claim the respondents pleaded that the plaint A schedule is a public road used by the public for access from N.H.49 to the approach road to the Adimali private bus stand.

5. The trial court found in favour of the plea of easement by grant and public right over the plaint A schedule and consequently granted a declaration and injunction as prayed for by the respondents. The counter claim was dismissed. That judgment and decree were confirmed by the Additional District Court, Thodupuzha in A.S.No.257 of 2004. Hence the second appeal on the above substantial questions of law.

6. Shri K. Ramakumar, the learned Senior Advocate for the appellants contended that the suit is not maintainable since it is filed without seeking leave of the court. Some of the respondents had filed O.S.No.284 of 1995 for similar relief with respect to the same property but they withdrew that suit without getting permission to file a fresh suit in respect of the same subject matter. It is contended that Ext.A8, application is not properly moved by the plaintiffs in O.S.No.284 of 1995 as it is not supported by an affidavit of the party concerned and instead, the affidavit is sworn by the counsel for the plaintiffs in O.S.No.284 of 1995. A further argument is that Ext.A9, order is passed without application of mind and that it does not even say that permission sought for institution of RSA No.606/2009 6 fresh suit in respect of the same subject matter was allowed. In the circumstances, relying on Exts.A8 and A9 the courts below were not correct in in holding that the present suit is maintainable. Reliance is placed on the decision in Order of the Holy Cross v. Fr. Lonappan Thattil and another(1989 (2) KLJ 360).

7. Referring to the claim made by the respondents over the disputed plaint A schedule, it is argued by the learned Senior Advocate that a claim of easement by grant and public right cannot co-exist as it is contradictory and the respondents having not elected either of the two claims, cannot now be heard to say that they have a right of easement by grant or public right over the disputed way. It is pointed out by the learned Senior Advocate that the courts below have proceeded as if the two rights claimed by the respondent could co-exist which is against the law. In the circumstances, the declaration and injunction granted by the trial court and confirmed by the first appellate court cannot be sustained. The counter claim of the 2nd appellant ought to have been allowed.

8. Shri Sreelal Warrier, the learned counsel for the appellants supplementing the above arguments contended that Ext.A1 is the only document based on which the courts below have found public right over the disputed plaint A schedule. It is pointed out that the documents produced by the appellants in the first appellate court and marked as Exts.B31 to 36 and the document produced in the second appeal along with I.A.No.1327 of 2009 would show that Ext.A1 came into existence by forgery and a case is pending in the Court of the Enquiry Commissioner and Special Judge, concerned. It is argued that in the above circumstances, no reliance could be placed on Ext.A1. Since the RSA No.606/2009 7 respondents have attempted to procure and succeeded in getting a judgment on a forged document, it is liable to be set aside. It is argued that forgery vitiates any proceeding and hence a decision based on a forged document may not be allowed to exist. It is also argued that there is no reliable evidence to show that the plaint A schedule was formed into a public right and at any rate, with the junction of the appellants to whom the property belonged. According to the learned counsel, the plaint A schedule is a development after 1998. Reliance is placed on Ext.B15, report submitted by DW3, the Advocate Commissioner in O.S.No.273 of 1995 filed by the 2nd appellant.

9. The learned counsel for the respondents contends that though in the plaint it was originally claimed that the respondents are entitled to a right of easement by grant based on the representation made on behalf of the 1st appellant while Exts.A2 to A7, assignment deeds were executed, after the appellants filed written statement, the enquiry conducted by the respondents revealed that the plaint A schedule is a public road mentioned in the records of the local authority also and hence in the replication filed in answer to the counter claim it is specifically contended by the appellants that the plaint A schedule is a public road. The learned counsel submits that in view of the above, the respondents are now confining their claim to that the plaint A schedule is a public road. According to the learned counsel, there is sufficient evidence to show that the plaint A schedule is a public road.

10. It is also argued by the learned counsel that it is acting upon Ext.A8, the application moved by the plaintiffs in O.S.No.284 of 1995 that the court has passed Ext.A9, order. It is pointed out that in Ext.A8, application RSA No.606/2009 8 permission for institution of a fresh suit on the same cause of action was applied for. Ext.A9 does not show that the said prayer was rejected. Hence, it is argued that it must be taken that the court has granted permission to file fresh suit on the same cause of action.

11. So far as the contention based on Exts.A8 and A9 is concerned, a reference to those documents is necessary. O.S.No.284 of 1995 is a suit for prohibitory injunction (alone) filed by one of the respondents against the 2nd appellant alone concerning the plaint A schedule. Ext.A8, application was filed by the counsel for plaintiffs in O.S.No.284 of 1995. That application is supported by the affidavit sworn by the counsel for the plaintiffs in O.S.No.284 of 1995. In the affidavit and the application (Ext.A8), it is specifically requested that the plaintiffs in O.S.No.284 of 1995 be permitted to file a fresh suit on the same cause of action. In Ext.A9, order the learned Munsiff states that the application is allowed. Ext.A9 does not specifically say whether permission to institute the fresh suit on the same cause of action was disallowed or not.

12. Under Rule 1(3) of Order XXIII of the Code, where the court is satisfied of the circumstances referred to in Clauses (a) and (b), it may grant the plaintiff permission to withdraw from the suit or part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.

13. It has been held time and again that when an application is preferred seeking permission to withdraw the suit with liberty to institute a fresh suit in respect of the same subject matter, the court has no power to bifurcate the reliefs and grant one while rejecting the other. The court can only either RSA No.606/2009 9 allow the application or reject the same in toto (see Balbir Singh v. Smt.Sulochana Devi (AIR 1970 Allahabad 382), T.W.Ranganathan v. T.K.Subramaniam and others (AIR 1971 Madras 477), Hans Raj Akrot v. State of Himachal Pradesh (AIR 1989 Himachal Pradesh 43) and Harihara Iyer v. Varkey(1985 KUC 361) and Jacob v. State Bank of Travancore (1991 (1) KLT 412).

14. The Supreme Court in Vimlesh Kumari Kulshrestha v. Sambhajirao and another - (2008) 5 SCC 58, (paragraph 16) has quoted with approval that permission need not be express and that it could be implied from the order read along with the application on which the order was made. A similar view is taken by the Calcutta High Court in Sukumar Banerjee v. Dilip Kumar Sarkar and others (AIR 1982 Calcutta 17). Hence, in so far as in Ext.A8, application a specific prayer is made to grant liberty to file fresh suit in respect of the same subject matter and the court by Ext.A9, order has allowed the application, it could not under the law bifurcate the requests and grant one while rejecting the other. There is nothing to show that the request to grant liberty to file fresh suit was rejected. Hence it must be taken that by Ext.A9, order the court, as prayed for in Ext.A8, has also granted liberty to file fresh suit in respect of the same subject matter.

15. The learned counsel for the appellants has invited my attention to the Order of the Holy Cross v. Fr. Lonappan Thattil and another(supra). There, it is held that the order granting withdrawal (with permission to institute a RSA No.606/2009 10 fresh suit) has to be by a speaking order and that the order should disclose that the court was satisfied about the circumstances which necessitated withdrawal of the suit.

16. Ext.A8, application is not supported by the affidavit of any of the plaintiffs in O.S. No.284 of 1995. The affidavit is sworn by the counsel. Ext.A9, order does also not say in so many words about the grounds of that application and the satisfaction of the court. But I am not sitting in appeal over the legality and correctness of Ext.A9, order in this appeal - if Ext.A9, order was wrong on point of law or on fact, the defendants in O.S.No.284 of 1995 ought to have challenged Ext.A9, order as provided under the law. Ext.A9 is an order passed with jurisdiction, assuming for the time being that the jurisdiction was irregularly exercised. Lack of jurisdiction is different from irregular exercise of jurisdiction. The defendants in O.S. No.284 of 1995 have suffered Ext.A9, order. It is admitted by both sides that Ext.A9, order has attained finality. The legality and correctness of Ext.A9, order cannot be challenged in a collateral proceeding (see the Full Bench decisions in Hriday Nath Roy v. Ram Chandra Barna Sarma (AIR 1921 Calcutta 34) and Raj Kumar Mahton v. Ram Khelawan Singh (AIR 1922 Patna 44) and the Single Bench decision in Hajarkhan Kalubava and another v. Kesarkhan Kayamkhan and others (AIR 1968 Gujarat 229).

17. Nor could the challenge to the maintainability of the suit in view of dismissal of O.S. No.284 of 1995 succeed on the facts even. The expression 'subject matter of the suit' occurring in Rule 1(3) of Order XXIII of the Code only RSA No.606/2009 11 means the plaintiff's cause of action in the suit. A suit on a different cause of action is not barred although the suit may relate to the same property (see Order of the Holy Cross v. Fr. Lonappan Thattil and another (supra). Respondents say that there was some mediation after filing of O.S. Nos.273 of 1995 and 284 of 1995 pursuant to which the suits were withdrawn. That, both the suits were withdrawn also suggests that in the present suit, the cause of action set up and the reliefs sought are also different. Hence also the present suit is not barred under Rule 1(4) of Order XXII of the Code.

18. The 2nd appellant/2nd defendant filed O.S.No.273 of 1995 against some of the respondents claiming that the said persons attempted to trespass into his property and form a way. It is not disputed that O.S.No.273 of 1995 also was withdrawn - according to the respondents, after the institution of O.S.Nos.273 and 284 of 1995 there was some sort of mediation between the parties as per which it was agreed that the respondents and others could use the plaint A schedule. Ext.B15 is the copy of report submitted by DW3, the Advocate Commissioner in O.S.No.273 of 1995. That report is dated

28.10.1995. In Ext.B15, it is stated that from the NH 49, there is a way turning towards south and proceeding towards east upto about 60 feet in length and having a width of 8 feet. The Advocate Commissioner reported in Ext.B15 that the said portion appeared to be a way recently formed for taking building materials to the construction site (allegedly of the respondents as per Exts.A2 to A7). In paragraph 11 of Ext.B15 it is reported that though the defendants in O.S.No.273 of 1995 had claimed that (in continuation of the above said 60 feet RSA No.606/2009 12 long way) there is a 12 feet wide way towards further east, DW3 could not see any such way. On the other hand, at the portion where the 1st defendant in O.S.No.273 of 1995 claimed that there was a way (in continuation of the way reported by DW3), DW3 found the area as covered with growth of grass.

19. Based on Ext.B15, it is argued by the learned counsel for the appellants that there was no possibility of any such road as the plaint A schedule being in existence in the way the Advocate Commissioner has reported in Ext.C1 even as on 28.10.1995. It is also contended by the learned counsel that if actually any such way was in existence at the time Exts.A2 to A7, assignment deeds were executed between 12.05.1995 and 30.05.1995, normally the right of easement by way of grant would have been mentioned in Exts.A2 to A7. According to the learned counsel, the absence of any such recital in Exts.A2 to A7 is a clear indication that there was no such road as the plaint A schedule in existence as noted by the Advocate Commissioner in Ext.C1.

20. Further it is argued that the documents produced by the appellants in the first appellate court and in this Court along with I.A.No.1327 of 2009 would show that the road register maintained by the local authority was fabricated. Hence Ext.A1 cannot be acted upon.

21. The document produced along with I.A.No.1327 of 2009 in this Court is a report dated 14.02.2008 of the Superintendent of Police, Vigilance and Anti-Corruption Bureau, Eastern Range, Kottayam. It is submitted that it is RSA No.606/2009 13 pursuant to that report that the case is pending before the Enquiry Commissioner and Special Judge (learned counsel for the respondents submits that no such case is pending before the Court of Enquiry Commissioner and Special Judge).

22. Ext.A1 is the certified extract of the road register maintained by the local authority. In Ext.A1, Sl.No.109 is the “Adimali private main bus stand, Juma Masjid Pally road”. Details of the said road are also given in Ext.A1. Referring to Ext.A1, PW3, Secretary of the local authority has given evidence. He has said that the said road (which is the plaint A schedule) is being maintained by the local authority. The plaint A schedule road is vested with the local authority.

23. Ext.B33 is the copy of the minutes book of the local authority. There, it is stated that the road originating from the NH 49 and reaching the approach road to the Adimali private bus stand (the plaint A schedule) is a road maintained by the local authority, having length of 145 metres and width of 12 feet being used by the public. It is further stated that the Panchayat committee resolved to vest that road with that local authority under Sec.169 of the Kerala Panchayat Raj Act. Ext.B34 is an information (dated 08.03.2006) collected by the appellants from the Secretary of the local authority pursuant to their application dated 23.02.2006. In Ext.B34 it is stated that since the minutes book, road register, etc. are produced in the Court of Enquiry Commissioner and Special Judge, the details requested for by the appellants could not be granted. It is also stated in Ext.B34 that apart from the said minutes and road register, there is no other record available with the local authority concerning the plaint A RSA No.606/2009 14 schedule road. Ext.B35 is the copy of report dated 06.04.2005 of the Village Officer, Mannamkandam to the Sub Divisional Magistrate, Devikulam. There, the Village Officer states that the disputed road (the plaint A schedule) passes through the property comprised in survey No.732/2 belonging to the 2nd appellant. Ext.B36 is the questionnaire the 2nd appellant had given to the local authority for information under the Right to Information Act. But the information if any given by the local authority is not appended to Ext.B36.

24. Merely based on the report of the Superintendent of Police, Vigilance and Anti Corruption Bureau produced along with I.A.No.1327 of 2009, I am unable to form any opinion that the road register of which Ext.A1 is the copy is manipulated. That report is only the result of an enquiry the officer has conducted. That report may or may not be correct. That report cannot also be simply admitted in evidence. No reliable evidence is adduced in this case to show that the road register is manipulated. I.A.No.1327 of 2009 has only to be dismissed. I do so.

25. It is not as if it is based on Ext.A1 alone that the trial court found in favour of the public character of the plaint A schedule. In Ext.C1, the plaint A schedule is shown as originating from the NH 49 (adjoining the Juma Masjid Mosque), proceeding towards south, then towards east along with the southern side of the plaint B to G schedules and reaching the approach road to the private bus stand. That the local authority has constructed the approach road for access from the NH 49 to the private bus stand on the further south is not disputed by the appellants. In fact they produced Ext.B4, copy of assignment RSA No.606/2009 15 deed executed in favour of the local authority. Pursuant to that assignment, the local authority has constructed the approach road from the NH 49 for access to the private bus stand. That approach road is being used by the public. Vehicles also go to the bus stand through that road. In otherwords, the plaint A schedule as reported by the Advocate Commissioner in Ext.C1 originates from a public place and ends at a public place. If the report of the Advocate Commissioner could be accepted, no further evidence is required to say that the plaint A schedule is a public road

26. On the complaint of some of the respondents and the office bearers of the Juma Masjid that the appellants caused obstruction to the plaint A schedule being used by the public, the Sub Divisional Magistrate, Devikulam initiated action against the appellants under Sec.133 of the the Code of Criminal Procedure. Ext.A10 is the order dated 21.05.2003 passed by the Sub Divisional Magistrate. There, referring to the documents mentioned therein and the oral evidence of the witnesses examined, the Sub Divisional Magistrate concluded that a public way (the plaint A schedule) is in existence and that the appellants have caused obstruction to it. The conditional order dated 03.06.1999 was made absolute. Whether the Sub Divisional Magistrate should have proceeded with the enquiry when the suit was pending in the civil court or whether he should have waited for the ultimate decision of the civil court is a different matter. None of the parties also requested the Sub Divisional Magistrate to keep his hand off until the civil court decided the matter. Therefore, the Sub Divisional Magistrate RSA No.606/2009 16 proceeded with his proceeding and passed Ext.A10, order. The learned counsel for the respondents submits that Ext.A10, order has become final. The learned counsel for the appellants was not able to confirm that statement. 27 Apart from the above, there is Ext.X1, report (copy of report submitted to the Sub Divisional Magistrate in Ext.A10, proceeding) submitted by PW2, the Village Officer. Ext.X1 and the evidence of PW2 also show that there is a well formed road (the plaint A schedule) connecting the NH 49 and the approach road to the Adimali private bus stand and the same is being used by the public.

28. Based on Ext.B15, report of DW3 (Advocate Commissioner) an attempt was made by the appellants to show that the plaint A schedule came into existence only after Ext.B15. But, I must notice that even in Ext.B15, there is reference to the existence of the disputed road at least upto a length of 60 feet and having a width of 8 feet. As regards rest of the way, what DW3, the Advocate Commissioner has reported (in O.S.No.273 of 1995) is that at the portion shown by the 1st defendant in O.S.No.273 of 1995 as the remaining part of the road, the area was covered with grass. In view of that, it is not possible to say that in continuation of the road reported by the Advocate Commissioner in Ext.B15, there was no road at all extending upto the approach road to the private bus stand. The learned counsel for the respondents submitted that originally, the property of the appellants was paddy land and there was a ridge used by the people of the locality to go from one place to the other. Later the appellants reclaimed their land. Then the ridge was formed into a road. RSA No.606/2009 17

29. It is interesting to note from Exts.A2 to A7, assignment deeds executed by the 1st appellant that in Exts.A3, A5, A6 and A7, the southern boundary is described as 12 feet wide way starting from the NH 49 towards north-western portion of the plaint B to G schedules. In Ext.A4, the southern and western boundary is given as the said 12 feet wide way. Therefore, it is clear that during the time Exts.A2 to A7 were executed between 12.05.1995 and

30.05.1995, the disputed way having width of 12 feet was in existence atleast on the western and southern side of the plaint B to G schedules.

30. Obviously, understanding the difficulty arising from the said boundary description in Exts.A2 to A7, the 2nd appellant when examined as DW1 attempted to wriggle out stating that it is a false entry made by the power of attorney holder of the 1st appellant. The 1st appellant did not mount the witness box to say so. So far as Exts.A2 to A7 stand, the southern and western boundary description which I have referred above as to the existence of the 12 feet wide road should also stand. Therefore, the contention that the disputed road came into existence only after Exts.A2 to A7 or even after Ext.B15, report in O.S.No.273 of 1995 is difficult to be accepted. I must also bear in mind the evidence of DW3 that he was not called upon to report on the disputed road. Along with that, there is the evidence of the Village Officer as PW2, Ext.X1 and the evidence of PW4, the 1st respondent. Therefore, even if Ext.A1 is kept out for consideration for the time being, there is sufficient evidence to show that there is a well formed road which connects the NH 49 to the approach road to the Adimali private bus stand. RSA No.606/2009 18

31. A further fact to be noticed from Ext.C1 is that on the immediate south of the plaint A schedule (of that portion allegedly belongs to the 2nd appellant) there is a two storied building and which houses the State Bank of Travancore and other establishments. Ext.C1 shows that access to the said building is from the plaint A schedule. The building faces the plaint A schedule. The Advocate Commissioner has shown the steps and shutters as opening towards the north-east (to the disputed plaint A schedule). Similarly I find from Ext.C1 that there is a five storied building of the City Bazar towards north- eastern portion of the plaint A schedule (almost at the portion where it reaches the approach road to the private bus stand). The Commissioner has shown that the shutters of the City Bazar also face the disputed road. Going by Ext.B15, those buildings are constructed on either side of the portion where he noticed growth of grass (in continuation of the way having width of 8 feet and length of 60 feet). (The 2nd appellant has a contention that the plaint B to G schedules take in his property also but, he had not given power to execute Exts.A2 to A7. I need not go into that question in this proceeding since that is not a question arising for a decision.

32. It is also relevant to refer to the evidence of the 2nd appellant as DW1. When questioned with reference to the plaint A schedule, DW1 stated that there is no such road in existence (in spite of Ext.C1, report and other evidence). He even stated that he has not seen the plaint A schedule road as it is not in existence. He would then say that the disputed plaint A schedule has a length of 20 metres through his property and 80 metres through the property of the 1st appellant. He would also say in answer to the question as to who had RSA No.606/2009 19 formed the plaint A schedule way that it is not a formed way but, it was a way. DW1 would say that only the occupants of the buildings belonging to him and the 1st appellant and their employees could use the plaint A schedule but not others. The version of DW1 that the way was not formed (by anybody) and that it was a way supports Ext.B15 where a portion of the disputed way, at the portion pointed out by the 1st defendant in O.S.No.273 of 1995 was found to be covered with growth of grass.

33. Though in the counter claim the 2nd appellant claimed right over a portion of the disputed way, no survey commission was taken out to measure and identify the property allegedly belonging to him. The 2nd appellant as DW1 would say that he has not measured the 2.5 acres belonging to him. In the above circumstances also the reliefs prayed for in the counter claim cannot be granted.

34. The learned Senior Advocate argued that there could be no declaration as to the existence of a public way. I am inclined to think that even beyond the scope of Sec.34 of the Specific Relief Act the courts could grant a declaratory relief as Sec.34 is not exhaustive of power of the court.

35. There is sufficient evidence to show that on the date of the suit there existed the plaint A schedule which is a public road. The challenge to the maintainability of the suit for not obtaining leave of the court in O.S.No.273 of 1995 also has to fail. RSA No.606/2009 20

36. The learned counsel for the respondents has given up the claim of easement by grant over the plaint A schedule. But in the view of my finding regarding the nature of the plaint A schedule, the judgment and decree of the trial court as confirmed by the first appellant court could be sustained. The relief prayed for in the counter claim cannot be allowed.

37. The substantial questions of law framed are answered as above. Resultantly, i. The second appeal fails and it is accordingly dismissed. ii. Parties shall suffer their cost in this appeal. All pending interlocutory applications will stand dismissed. THOMAS P.JOSEPH, Judge.