AUGUSTHY Vs. VARKEY

JUDGEMENT

(1.) This is a fourth round litigation, arising under Chap.10 of the Code, centering around right to a pathway. Three petitions that preceded, are Crl. M.C. Nos. 954/84, 252/85 & 341/85, filed by petitioner in Crl. R.P. 492/88. He challenges an order of the Sub Divisional Magistrate, Devikolam in M.C. 8/84 made under S.138 of the Code of Criminal Procedure, declaring a 4 feet pathway in his property, as a public pathway. Petitioners in Crl. R.P. 857/88 (1st and 2nd respondents in Crl.R.P. 492/88) challenge the same order, seeking to widen it by a declaration that the aforesaid pathway is 8 feet wide. Since the issues raised are common, the two petitions are disposed of by a common order and parties are referred to, by their description and rank in Crl.R.P. 492/88.

(2.) Petitioner is the owner of about 3.8 acres of land in Sy. No. 1/1 (Sub Division 3060 and 3189) of Konnathady Village. 1st respondent brother of petitioner is the owner of adjoining property. Admittedly, there was a pathway through the property of petitioner, but it was only 2 feet wide, according to him. According to respondents, it was 8 feet wide, and is part of a 2 Km. long pathway, along a mountain terrain. Complaining of obstruction by petitioner, 1st and 2nd respondents moved the Sub Divisional Magistrate and the magistrate took cognisance of the matter, on the basis of a report from the Circle Inspector of Police that the pathway was obstructed by petitioner by constructing stone wall and raising cultivation. An interim order was passed by the magistrate under S.142 of the Code. This was challenged in Crl.M.C. 954/84.

(3.) By order dated 15-2-85, a learned Judge of this court directed petitioner to keep a 2 feet wide pathway open, observing: