N C GEORGE Vs. N C JOHN

JUDGEMENT

(1.) PLAINTIFF is the appellant. Concurrent decision rendered by the two courts below in a suit for declaration and injunction by which the appellant/plaintiff was nonsuited is challenged in this appeal.

(2.) THE dispute in the case pertains to a road described as 'B' schedule, which according to the plaintiff was a private way formed from portions of his registered holding. 'C' schedule is a portion of 'B' schedule leading to his residential building situate in 'A' schedule beside 'B' schedule road. 'B' schedule road was previously having only a width of 1.5 feet, but, later, with the land taken from the registered holding of the plaintiff, it was widened and at present it has a width of 14 feet. THE defendants had been permitted by the plaintiff to make use of the road for carrying out constructions in their property situate beside the road. But, they have absolutely no right over the road according to the plaintiff. A portion of the property belonging to the 5th defendant had also been made use of for the purpose of widening 'B' schedule road, but, in view of continuous use of the road by the plaintiff with hostile animus denying the right of the 5th defendant and all others over the road, whatever right 5th defendant had over the portion of the land surrendered for widening the road had been lost by his adverse possession, according to the plaintiff. On the above basis, the plaintiff sought for a declaration of his title and possession over 'B' schedule and an injunction restraining the defendants from interfering with his rights over 'B' schedule and and 'C' schedule roads. Resisting the suit claims, the defendants filed a joined written statement in which among other contentions they contended that previously all the properties were paddy lands, and, later, after reclamation, the lands had been converted to garden lands. THE road which now exists as 'B' schedule was previously only a ridge and on surrender of properties on both sides by the land owners, 'B' schedule road had been formed, over which the plaintiff has no proprietory or any other right to the exclusion of the defendants and others, who too are entitled to use the same as of right. According to these defendants, it is not a private road, but, a public road, which has attained the character as such by long and continuous use of the public as of right. On the materials placed by both sides, which consisted of PW1 and PW2 and Ext.A1 for the plaintiff and DW1 and DW2 and Exts.C1 to C3 reports prepared by an advocate commissioner deputed by the court for local inspection, it was found that the claim raised by the plaintiff for declaration was unsustainable as it was shown that he has no exclusive title over plaint 'B' schedule. THE trial court also noticed that despite the specific challenge raised by the defendants, no attempt was made by the plaintiff to take out a commission and identify his registered holding from which 'B' schedule property had been carved out, which was his specific case for seeking the declaratory relief. THE contentions raised by the defendants were found more probable, trustworthy and convincing to hold that 'B' schedule is a public road. In that view of the matter, the trial court dismissed the suit. As against the decree of dismissal, the plaintiff preferred an appeal. THE lower appellate court, after reappraisal of the materials, concurring with the conclusions formed by the trial court turned down that appeal.