Additional defendants 6 to 9 in O.S.No.980/1997 on the file of the Principal Munsiff's Court, Kottayam are in appeal before this Court. These additional defendants represented the St.Mary's church, Manarcadu and St.Mary's College, Manarcadu which is established by the St.Mary's church. 2. The respondents filed the suit alleging that plaint item No.2 owned by the first plaintiff is abutting plaint No.1 public thoroughfare and therefore, the first plaintiff has a right of access to the public way through every inch of his property that touches the public way.
3. The additional defendants 6 to 12 were impleaded in the suit stating that they represent the church obstructed plaint item No.1 thoroughfare by way of constructing three gates at three points and they constructed walls by the side of the way and thereby obstructed the entry of the respondents to plaint No.1 of the property. Therefore, they sought relief of permanent prohibitory injunction and mandatory injunction. The church filed O.S.No.867 of 1994 for injunction against the respondents on the allegation that taking advantage of the wrong entry in the re-survey records, they have caused obstruction to the church attempting to close the college compound.
4. Earlier, the suits were tried and disposed of by a common judgment dated 10th April 2003 by which the lower court dismissed the suits. The respondents herein preferred an appeal, but the appellants who are the plaintiffs in O.S.No.867/1997 did not file any appeal. The appeal filed by the respondents herein as A.S.No.119/203 was allowed and the suit was remanded for fresh disposal after allowing the respondent to take steps to implead the necessary parties. It is after the remand of the suit that the additional defendants 6 to 12 who are the present appellants were impleaded. Amendment was also effected after the remand of the suit. After the remand, the trial court disposed of the suit by judgment dated 28.2.2006.
5. The present appellants filed A.S.No.173 of 2006 before the District Court, Kottayam which was dismissed by the impugned judgment. Thus, they have come up in appeal.
6. I have heard the learned senior counsel for the appellants and the learned counsel for the respondents.
7. The contention of the respondents was that even before the church had purchased the properties for the establishment of the college, there was a public pathway along the properties through which the respondents and others were having ingress and egress to the PWD road as shown in the re-survey records. The appellants denied the existence of the pathway as contended by the plaintiff. They contended inter alia that the suit was not maintainable. It was filed without leave of the court under section 91 of the CPC.
8. The trial court held that there was a public pathway earlier and that the church had only widened the same. It was further held that the church had dedicated the widened pathway in favour of the public. The plaintiffs were granted the mandatory injunction. The church was directed to remove the wire fencing and the gates put up by them.
9. The appellant would contend that the church purchased about 16 acres of land from various owners during the year 1980-1981 and buildings necessary for the colleges were also constructed. The college was started after getting affiliation from the M.G.University. According to the appellants, the Kavumpadi-Thannikapadi PWD road is on the western side of the block of the properties purchased by the college. According to them, there was no access from the said PWD road to the college campus. Hence, the property was purchased by the church for constructing a road from the college campus to the above mentioned PWD road on the western side and a road was constructed providing access from the road to the college campus. The college compound have frontage to the above mentioned PWD road only through this road constructed by the college.
10. It is their further case that Manaracadu- Kidangoor PWD road passes through the eastern side of the college at a distance. They would contend that the church purchased the properties with the intention of providing access to the road also from the college campus. Two roads were constructed by the church from the above mentioned road, one on the northern side and the other on the southern side. The approach road constructed on the southern side goes west-ward for some distance, then it turns northward and joins the above mentioned northern approach road at the main gate on the south eastern corner of the western courtyard of the college.
11. The appellant contended that there was no road or private or public pathway through any of the properties purchased by the church for the college. According to them, it was during the year 1980-1981 that the church purchased the properties for the college. It was only thereafter the road came into existence for the first time and this road was constructed by the church from the courtyard of the college to the above mentioned two PWD roads so as to enable the students and members to the staff of the college to have access to the college campus from those two roads. They would further point out that there was delay in constructing gates/arches at places where the approach roads met the PWD roads. The re-survey was conducted in the locality by the year 1997. The absence of arch/gates lead the re-survey authorities to the assumption that the college road was a public road and hence they showed the college road as “നnളത"വഴ%” in the re-survey roads. They would contend that the church authorities complained to the authorities concerned and enquiry was conducted by the Tahsildar and the District Survey Superintendent and as they were convinced of the mistake, entry was reversed and the survey numbers through which the college road passed were included in the Thandaper account of the church.
12. The plaint item No.1 is described in the plaint as public pathway having a width of 5 metres starting from Kavumpadi-Thannickappadi PWD road on the west and ending at the Manarcadu- Kidangoor PWD road on the east and which forks into two branches when it reaches the college compound, both branches reaching the Manarcadu-
Kidangoor road. Item No.2 of the plaint schedule is described as 14.5 ares of land in Sy.Nos.161/7, 12 with a building and improvements therein. Item No.3 is a gate together with its pillars, side walls etc. near the college courtyard. Item No.4 is another gate, about 300 ft. west of item-3 gate. Item No.5 is a third gate near to the starting of the pathway from the Kavumpady-Thannickappadi road.
13. The appellants are aggrieved by the finding of the court below that the plaint item No.1 was in existence even before the church purchased the properties and that the church had only widened the pathway and the finding that there was dedication of the pathway by the church in favour of the public.
14. The learned senior counsel would point out that after the amendment, the case was not posted for a date for filing the written statement of the plaint and the addition of additional defendants and that procedure adopted has resulted in miscarriage of justice. In the appeal memo filed by the appellants before the lower appellate court, there was a specific direction for remand by the appellants for giving the present appellants an opportunity of filing a written statement. That was not allowed. The learned senior counsel would argue that this procedure has vitiated the trial of the case.
15. It was pointed out that the correction of the nature of properties in the re-survey records was not accepted by the trial court on the ground that it was subsequent to the filing of the suit. But it has to be remembered that the respondents were pursuing their remedies before the authorities concerned and they have succeeded in their attempt.
16. The finding of the court below that the respondents were not given notice over the said decision does not appear to be convincing. Had the respondents been aggrieved by the decision of the re-survey authorities, they could have challenged the same by an appeal before the District Collector under the provisions of the Survey and Boundaries Act or a civil suit challenging the said decision.
17. As the failure on the part of the courts below in not affording the appellants an opportunity of filing additional written statement has caused serious prejudice to the appellants, this Court is of the view that the impugned judgment shall not be allowed to stand.
18. It is also distressing to note that the Exhibits marked in this case does not bear the seal of court or initials of the presiding officer which would indicate that the trial was conducted in a shabby manner. Therefore, this Court is of the definite view that the appeal can be allowed and the case can be remitted back to the trial court for fresh disposal.
In the result, this appeal is allowed. The impugned judgment upholding the trial court decree is set aside. The judgment of the trial court is set aside and the matter is remitted back to the trial court for fresh consideration, after affording both sides to submit additional pleadings and an opportunity to adduce both sides additional evidence, if they choose.
The entire exercise shall be completed within six months from the date of receipt of a copy of the judgment by the trial court. Lower Court Records shall be transmitted to the trial court.
Needless to say that the existing state of affairs shall continue till a final verdict is given by the trial court in the matter.
Sd/-A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE