JUDGMENT K. Ramanna, J. An unsuccessful plaintiff has come up with this appeal under Section 100 of CPC to set aside the judgment and decree dated 25.1.2002 passed in RA 15/98 on the file of the Prl. Civil Judge (Sr.Dn.) Karwar, confirming the judgment and decree dated 8.12.1997 in OS. 44/88 on the file of the Civil Judge (Jr.Dn.) as Ankola. 2. Initially, the appellant/plaintiff herein Tukaram Sheshagiri Shanbhag filed a suit against the respondents/defendants 1 and 2 and two others with a prayer to restrain the respondents to form a road in the lane bearing Sy.No. 2-B measuring 1 Gunta 4.1/2 Annas and Sy.No.2-A2 measuring 16 Guntas of Madanakeri village in Ankola Taluk. 3. The case of the appellant/plaintiff is that the suit schedule property belong to himself and his family members and they are in possession and enjoyment of the suit schedule property and they are actually cultivating the lands in question and he has constructed a residential house in the suit schedule property i.e., Sy.No.2-A2 shown as ‘B’ of the hand sketch and the shop is shown as ‘A’ and in another Sy.No.2-B measuring about 1 Gunta 1½ Annas belong to his brother and he has also constructed his house and both of them are in actual vahivat and cultivation of both the Sy.Nos. In between these two Sy.Nos. there is a vacant place measuring about 4 of 5 feet in width and the same is shows as ‘EF’ in the plaint hand sketch and he same is in actual vahivat among the family members of the plaintiffs and therefore, neither the defendant nor any public have got any right over the land shown in the hand sketch ‘EF’ and the appellant and family members are using the ‘EF’ portion as their pathway for their convenience and public are not entitled to use the same. Since the defendants 1 and 2 have tried to install electric pole in ‘EF’ portion of the hand sketch, therefore, a legal notice was sent to respondents through their advocate inspite of that the defendants formed the route in ‘EF’ portion and the respondents/defendants are bent upon to start with repair as well as construction of the road in ‘EF’ portion and to convert the same into a public road and tried to cause loss to the foundation stone of appellant’s building. Hence, they filed a suit against the respondent seeking permanent injunction restraining them from making any road in ‘EF’ portion as shown in the plaint sketch and also not to cause damage to the foundations of the appellant’s building and other portion of the suit properties. 4. Respondents/defendants 1 and 2 as well as defendants 3 and 4 appeared through their respective counsels and filed their separate statement of objections. 5. The contention of the defendant is that the said ‘EF’ portion of land is a panchayat road being used by the public since many year as of their own right and the same is given to the Panchayat by Gouda Saraswatha Mutt and the appellant/plaintiff has got no right in the ‘EF’ portion and the vacant space. Defendants 1 and 2 being the custodian of the ‘EF portion and vacant space have got every right to repair and construct the road for the convenience of the public. Therefore, they sought for dismissal of the suit. On the basis of the available pleadings, the trial Court framed in all four issues. After considering the materials placed on record, all the issues were answered by the trial Court in the affirmative. A decree and the judgment came to be passed by considering the submission made by the counsel for the appellant/plaintiff. In Para.14 of its Judgment, the trial Court has observed that while arguing the case, Sri S.H. Nayak, learned advocate for the appellant/plaintiff conceded that in the ‘EF’ portion as shown in the plaint hand sketch, there is a already a road and the plaintiffs will not obstruct for the use of the said road but their contention is that neither the defendants nor any public should not cause damage either to the compound wall or to the foundation stone or any other portion of the suit property situated by the side of the said road. It is also contended by the learned counsel that if an order has been passed against the defendant/respondents directing not to cause any damage to the compound wall as well as foundation stone and other portion of the house, the same would serve the purpose of filing the sit by the plaintiff. It is also contended by the learned counsel that if an order has been passed against the defendant/respondents directing not to cause any damage to the compound wall as well as foundation stone and other portion of the house, the same would serve the purpose of filing the sit by the plaintiff. Therefore, the trial Court passed the judgment and decree holding that the defendants/respondents 1 and 2 are restrained permanently from constructing the new road in the ‘EF’ portion and also from removing the jagali situated in the suit property. However, it is made clear the defendants/respondents 1 and 2 can repair the ‘EF’ portion of the road without causing inconvenience or damage to the property of the plaintiff. The suit against defendants 3 and 4 came to be dismissed. The very appellant preferred and appeal before the learned Civil Judge (Sr.Dn.) Karwar in RA.15/98 and the said appeal came to be dismissed. Assailing the said judgment and decree passed by the Courts below, the appellant has come up with this appeal. 6. While admitting the case, this Court framed the following substantial question of law:- “Whether the court below were justified in dismissing the suit of the plaintiff based on a concession made by the learned counsel appearing for him, when such submission was contrary to the pleadings and evidence.” 7. Heard the arguments of the learned counsel appearing for the appellant and perused the records. 8. It is argued by the learned counsel for the appellant that the appellant herein fled a suit seeking permanent injunction restraining the defendants 1 to 4 either to repair or to form a road in the portion shown as ‘EF’ in the plaint sketch. The contention of the learned counsel for the appellant is that the suit schedule property belongs to the appellant and the ‘EF’ portion shown in the hand sketch is a private road for the use of their family members. But the trial court as well as the lower appellate court without considering the evidence placed on record partly decreed the suit on the basis of the statement said to have been made by their counsel Sri S.H. Nayak. It is further contended that his counsel never made such a statement conceding the existence of road. But the trial court as well as the lower appellate court without considering the evidence placed on record partly decreed the suit on the basis of the statement said to have been made by their counsel Sri S.H. Nayak. It is further contended that his counsel never made such a statement conceding the existence of road. The same plea has been put forth before the lower appellate court i.e., Civil Judge (Sr.Dn.) but the learned Civil Judge has not accepted the submission made by the learned counsel for the appellant on the ground that the appellant had not filed any affidavit of his advocate Sri S.H. Nayak who was representing the plaintiff before the trial court stating that he has not made any such submission conceding the said fact. Affidavit of Sri S.H. Nayak has been filed before this Court along with the memorandum of appeal by denying about the submission made by him conceding that there is already a road in the ‘EF’ portion of the land sketch attached to the plaint and the plaintiff will not obstruct for the use of the said road. Therefore, it is argued that considering the evidence placed on record by the parties, the trial Court answered issue Nos. 1 and 2 in the affirmative but passed the decree as per the submission said to have been made by the counsel for the appellant, which is totally incurred. 9. Learned counsel for the appellant vehemently argued that the arguments if any made by the counsel conceding the existence of the road, even then the plaintiffs contention and the grounds urged by them cannot be termed as a compromise. It is argued that now the appellant’s counsel Sri S.H. Nayak, who was representing the appellant/plaintiff before the trial Court has field an affidavit contending that he has not made any such statement before the trial court against the interest of the plaintiff. Therefore, it is argued that the judgment and decree passed by the Court below on the basis of the alleged statement is liable to be set aside. 10. Therefore, it is argued that the judgment and decree passed by the Court below on the basis of the alleged statement is liable to be set aside. 10. In support of his contention, learned counsel for the appellant relied upon a decision of the Apex Court in case of Sri Swami Krishnanand Govindanand –vs- M/s. M.D.Oswal Hosiery (Regd.) [ AIR 2002 SC 1162 ] wherein it has been held that “statement made by a counsel of a party across the Bar conceding the grounds cannot be termed as a compromise”. 11. It is argued that none of the respondents have stepped into the witness box to prove their contention taken. In the evidence, the appellant has categorically stated the ‘EF’ portion of the land is not a public road and the respondents / defendants have not cross-examined the appellants nor the respondents have challenged the said statement made by the appellant. As such, the statement made by the appellant has been accepted by the respondents. Therefore, the judgment and decree passed by the trial court is totally incorrect and illegal and the same is liable to be set aside. 12. In support of his contention, learned counsel for the appellant relied upon a decision reported in case of A.E.G.Carapiet vs. A.Y.Derderian ( AIR 1961 CAL 359 ) wherein, it has been held thus:- “Wherever the opponent has declined to avail himself of he opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. This is not merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to given and lead evidence by producing witnesses.” 13. Therefore, it is contended that respondents 1 and 2 have not challenged the evidence of P.W.1 in cross-examination and on this ground alone, both the judgment and decree passed by the Courts below are liable to be set side. 14. Therefore, it is contended that respondents 1 and 2 have not challenged the evidence of P.W.1 in cross-examination and on this ground alone, both the judgment and decree passed by the Courts below are liable to be set side. 14. Learned counsel for the appellant also relied upon a decision of the Supreme Court reported in case of Vidhyadhar vs. Mankikrao and Others [ AIR 1999 SC 1441 ] wherein it has been held thus:- “Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct”. 15. I have carefully examined the materials placed on record. The trial court framed in all four issues. The burden of proving the said issues lies on both the plaintiff and defendants 1 and 2. The trial Court scrutinized the evidence of P.W.1 and the documents produced by him. The defendants never entered the witness box and produced any document to show that the suit schedule property is a public road or a public property but the trial court has entirely relied on the submission made by the counsel for the appellant and partly decreed the suit on the basis of the submission made by the learned counsel S.H.Nayak. While partly decreeing the suit, the trial court held that the defendants 1 and 2 are permanently restrained from constructing a new road in ‘EF’ portion or repairing the same so as to cause inconvenience and damage to the pagara situated on either side of the ‘EF’ portion and also from removing the “OPQR” jagali Exs.D.1 to D.5 foundations in any manner so as to cause inconvenience or damage to the plaintiff’s suit property. But the liberty was given to the defendants 1 and 2 to repair without causing any inconvenience or damage to the property, which order has been challenged by the appellant before the learned Civil Judge (Sr.Dn.) before whom a submission came to be made by the appellant/plaintiff that his counsel has not conceded any fact before the trial court but the first appellate Court dismissed the appeal on the ground that he affidavit of S.H.Nayak, counsel for the plaintiff has not been filed in support of their submission. In view of the facts and circumstances of the case, the law laid down by the Apex Court in case of Sri Swami Krishnanand Govindanand vs. M/s.M.D. Oswal Hosiery (Regd.) [ AIR 2002 SC 1162 ] supra, is aptly applicable the case on hand. 16. The trial Court as well as the lower appellate Court erred in relying wholly on the alleged submissions made by the learned counsel for the appellant before the lower Court. The appellant now contended that his counsel has not conceded any fact. Even otherwise, the courts below ought not to have relied on the submissions of the counsel for the appellant conceding contrary to the pleadings, when the pleadings and the documents produced by the appellant and even the Court commissioners report speaks differently, therefore the judgment and decree passed by the trial Court is erroneous and incorrect. When the respondents/defendants themselves have not proved that they are the owners of the ’EF’ portion of the plaint, which is required for public use, the trial Court cannot pass a decree on the basis of the submission made by the counsel for the appellant giving liberty to the defendants 1 and 2 to repair the ‘EF’ portion of the road, Considering the affidavit of the counsel Sri S.H.Nayak and also the report submitted by the Court Commissioner as well as the fact that the respondents/defendants have not seriously disputed about the title and ownership of the appellant over the suit schedule property especially ‘EF’ portion shown in the plaint sketch, the defendants/respondents 1 and 2 are not entitled to form or repaid the road existing on the said ‘EF’ portion. As such, the orders passed by the Courts below are liable to be set aside. 17. Accordingly, the appeal is allowed. Judgment and decree passed by the learned Session Judge as well as the trial Court are hereby set aside. Respondents 1 and 2 are permanently restrained from forming or repairing the road i.e., on the ‘EF’ portion of the property shown in the plaint sketch, which is belonging to the plaintiff.