HIGH COURT OF KERALA
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(1.) No error of law. The courts below have found that for as long as living memory extends the plaintiffs and the other people of the locality have been using as of right, the pathway PQRSTABCDEF in the Commissioner's plan Ext. C1, connecting the public road on the north east with the big block of paddy land known as Narikkandi Vayal on the south for reaching their houses and the lands they cultivate although the pathway runs through private lands (parambas). Only the defendants through whose land (the northern portion of S. No. 160/8) the disputed portion of the pathway, namely, ABCDE runs have thought fit to object. This finding is amply supported by the evidence rigidly excluding those portions of it which are strictly speaking, inadmissible. Admittedly a well defined lane with high embankments or walls on either side separating it from the parambas through which it runs exists all along PQRSTA and also along EF and, even in the disputed portion in between, namely, ABCDE, the Commissioner found that there must have been such a lane which had been recently filled up and closed by the defendants. And it is clear that the pathway in question is the only practicable way by which the persons of the locality cultivating Narikkundi Vayal and other lands to the south west can reach those lands from their houses to the north and north east. The finding of user as of right from time immemorial is obviously correct and the plaintiffs' suit for restoration of the obstructed portion ABCDE was rightly decreed. It is true that the plaint misdescribed the right it sought to enforce as an easementary public right of way and that the first court in decreeing the suit fell into the same error as if there could be an easementary right in gross. The lower appellate court gave the right its proper label in calling it a customary right. The defendants were in no way prejudiced by the wrong label given by the plaint, for, the averments in the plaint of user as of right without let or hindrance, from time immemorial by the people of the locality clearly pointed to a customary not an easementary right and the issue joined as issue 4. "Whether there existed a public pathway along ABCDE in the sketch plan attached to the plaint" clearly covered such a claim. And there can be no doubt that all the ingredients of a valid customary right namely, antiquity, continuity, invariability, certainty and reasonableness are here satisfied.
(2.) The objection that the suit must fail because it has not been brought in accordance with S.91 of the Civil Procedure Code and no special damage has been alleged or proved seems to me untenable. There is some controversy whether the rule recognised by the preponderance of judicial authority, and, it seems to me clearly implied be S.91 of the Code, that, where there is no special damage, a suit in respect of the obstruction of a public highway can be brought only in accordance with the abovesaid section is well founded or not. But it is well settled since Chuni Lal v. Rum Kishen Sabu (ILR XV Calcutta 460) that what are called village pathways like the one now in question, based on a customary right vested in the people of the locality, are not public highways within the meaning of that rule.
(3.) It is said that even a customary pathway, which the public of the locality have a right to use, vests in the panchayat concerned under the Madras Village Panchayats Act and its successor statute, the Kerala Panchayats Act. Assuming that to be so, I do not see how it follows that this vests the right to sue in respect of such a pathway exclusively in the panchayat so as to deprive the citizen of the right of suit which he otherwise possesses.;
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