MAHALINGA BHAT Vs. DOOJA SOUZA

JUDGEMENT

(1.) Appellant plaintiff filed the suit for injunction to restrain the defendants from taking any vehicle through A schedule property. Additional Munsiff, Kasaragod dismissed the suit holding that the pathway in question is being used by the people of the locality and so the plaintiff is not entitled to the injunction sought in the suit. This finding has been confirmed by the Sub Judge, Kasaragod in A.S.3 of 1986.

(2.) Contention of the plaintiff is that there existed previously only a foot path through his property, that it belonged to him exclusively, that he widened the same and that defendants have no right to take any vehicle through it. The Courts below held that there existed a public pathway with two feet width through A schedule property. Both the Courts also repelled the plaintiffs contention that it was he who widened the road. The Sub Judge held that even if pathway was widened at the instance of the plaintiff, he cannot claim exclusive possession over the widened portion.

(3.) In view of the concurrent findings of the Courts below that there existed a pathway having width of two feet through plaint A schedule and that it was widened by the people of the locality, the question that arises for consideration is whether plaintiff is entitled to seek injunction restraining the defendants from taking vehicles through the road. As the evidence in the case discloses the fact that there existed a public pathway through plaint A schedule, even if the plaintiff had to surrender portion of his property for converting the pathway into a road it cannot be retained as his private properly. Plaintiff's contention that the foot path with two feet width as it existed before widening of the same alone can be used by the defendants and that they cannot use the remaining portion of the road cannot be accepted due to its sheer impracticability. Plaintiff's claim that he alone can use vehicles through the road as the existing foot path was widened by surrendering portion of his property and that defendant do not have that right deserves to be rejected as the widening of the road enures to the benefit of the general public.