JUDGMENT : V Srishananda, J. Heard Sri K.Bhaskar, learned counsel for the appellant. None appears for the respondents. 2. Parties are referred to as plaintiff and defendants as per their original ranking before the Trial Court, for the sake of convenience. 3. Unsuccessful plaintiff in O.S.No.4636/2002 is the appellant challenging the dismissal of the said suit by the judgment and decree dated 06.03.2008 on the file of the IX Additional City Civil and Sessions Judge, Bengaluru. 4. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: Plaintiff filed the abovementioned suit contending that his father had purchased the agricultural land measuring 2.16 acres in land bearing Sy.No.9/1 of T.Dasarahalli Village under registered sale deed dated 08.11.1954. Its northern boundary is a Government oni. Father of the plaintiff and father of the defendants formed unauthorised residential layout in their land and sold those sites. 5. In the year 1995, T.Dasarahalli Grama Panchayath became City Municipal Council and thereafter regular roads were laid in the village. Despite laying of such roads, the government oni or the pathway continued to be in existence and it was converted into pakka road. Karnataka Electricity Board has laid electric poles in the road and telephone department also laid telephone lines. 6. It is also contended that 4 to 5 sewerage chambers are made in the said road to connect the sewerage from respective houses. It is further contented that to the north of the disputed pathway, Ward No. 11 of T.Dasarahalli is located and what was once upon a time a kacha oni is now the connecting road between the suit property and the Ward No.11. 7. Plaintiff claimed the relief of permanent injunction in respect of the following property (hereinafter referred to as ‘suit property’), contending that defendant is not allowing the said public road to be utilized by the plaintiff and others. Therefore, sought for an order of injunction. 7. Plaintiff claimed the relief of permanent injunction in respect of the following property (hereinafter referred to as ‘suit property’), contending that defendant is not allowing the said public road to be utilized by the plaintiff and others. Therefore, sought for an order of injunction. “All that piece and parcel of the road measuring 24 feet x 448 feet road formed and in existence within the limits of City Municipal limits of T.Dasarahalli, now coming within Bruhat Bengaluru Mahanagara Palike and bounded on the East by Road junction comprising of 7 th Main Road, 4 th Main Road and another unnumbered road, West by transformer of KEB and others property, North by Ward No.11 comprising of 3 cross roads and South by Ward No.12 and plaintiff’s property.” 8. Defendant No.1 filed written statement contending that suit is not maintainable in law or on facts as plaintiff is unable to make out a case for lawful possession over the suit property. 9. He specifically denied the plaint averments in paragraphs 2 to 4 and 7 to 10. He further contended that the boundaries mentioned in the sale deed of the plaintiff differs from the factual aspects at the spot and it differs from the allegations made in paragraph 2 of the plaint. 10. It is also contented by the defendant No.1 that the rough sketch filed along with the plaint is a self-serving document without any sanction whatsoever and it did not depict the factual aspects on the spot. 11. Defendant No.1 specifically denied the existence of the government oni (pathway). He further contended that at any rate, such a government oni did not exist in the land of first defendant. 12. It is also denied by the first defendant that plaintiff’s father has left behind land measuring 40 feet x 400 feet for the use of general public and averments made in paragraphs 6 and 9 of the plaint does not require any comments and sought for dismissal of the suit. 13. There was an additional written statement filed by the first defendant wherein he has admitted the appointment of the Court Commissioner and he visiting the spot and filing a report. 14. 13. There was an additional written statement filed by the first defendant wherein he has admitted the appointment of the Court Commissioner and he visiting the spot and filing a report. 14. But as per the Commissioner’s report, there is no existence of sewerage line, electric poles, telephone wire connections and he denied that after the visit of the Court Commissioner, the City Municipal Council, T.Dasarahalli, formed a road measuring 448 feet x 22 feet. 15. Based on the rival contentions of the parties, following issues were framed by the learned Trial Judge. (i) Whether the plaintiff proves that the schedule property exists on the northern side of his property? (ii) Whether the first defendant proves that his father had retained land measuring 40 x 400 feet abutting the land of plaintiff? (iii) Whether the plaintiff is entitled to the declaration sought for? (iv) Whether the plaintiff is entitled to permanent injunction sought for? (v) To what order or decree? 16. In order to discharge the burden cast on the plaintiff, plaintiff got examined himself as P.W-1 and a witness by name C.Muniraju as P.W-2. On behalf of the plaintiff, as many as 19 documents were placed on record which were exhibited and marked as Exs.P-1 to P-19 comprising of registered sale deed, certified copy of the plaint, written statement, order sheet, endorsement issued by Assistant Commissioner, copy of the legal notice, certified copy of the report of the Court Commissioner in MFA No.6689/2002, tender notifications published in Vijaya Kanataka, photographs, rough sketch and negatives of the photographs. 17. As against the material evidence placed on record, first defendant-Krishna Achar got examined himself as D.W-1, but there was no documentary evidence placed on record by him. 18. On conclusion of recording of evidence, learned Trial Judge heard the arguments of the parties and by impugned judgment dismissed the suit of the plaintiff. 19. Being aggrieved by the same, plaintiff has filed the present appeal on the following grounds: “The appellant has filed this suit against the defendant seeking the relief of declaration that the suit schedule property be declared as road meant for the usage of the public and the plaintiff and in support of that subsequent to the filing of the suit the City Municipal Council has called for tenders as per Ex. P8 & P9 which has been accepted by the defendant No.1 in his cross examination. P8 & P9 which has been accepted by the defendant No.1 in his cross examination. This aspect has not been believed by the lower court. Hence the judgement and decree needs to be set aside. This Hon'ble Court in MFA No.6689/2002 was pleased to appoint a Commissioner who visited the spot and filed the report stating that there is a straight pathway to the extent of 448 feet and the width varies. Subsequent to the Commissioner's Report the City Municipal Report was pleased to call for tenders on 2 occasions as per Ex-P8 & P9 and formed road to the extent of 448 feet. Besides this the CMC also formed drainage on both the sides which are evident from the photos produced by the plaintiff as per Ex P-9 to P-13, P-15 to P-19 There is no reason to disbelieve these photographs and the admissions made by the DW-1 in the cross examination. The appellant submits that the defendant No.1 & 2 have taken a defence that their father have retained 40 feet X 400 feet for their personal use out of the 2 acres of land in Sy.No.4 of T.Dasarahalli while forming housing sites. The DWI in his cross examination has admitted that his father has formed sites in the said Sy.No. and sold the sites to purchasers for valuable consideration. The said witness has not placed any material to show how many sites are formed and which sites are retained by his father. The learned judge did not give the benefits of these admissions in favour of the plaintiff and as such committed error in dismissing the suit. The defendant No.1 in his cross examination has admitted the presence of the electrical poles, Telephone poles which runs through the said road on either side. The plaintiff has also produced documentary evidence to show that there is a sanitary drainage on either side of the road. The learned judge failed to look into these aspects and erred in dismissing the suit. Though the lower court has come to the conclusion that there is a oni of 448 feet length as reported by the Commissioner as per Ex.P7 which is in support of the plaintiff's claim of road which is in existence and developed by the City Municipal Council. Though the lower court has come to the conclusion that there is a oni of 448 feet length as reported by the Commissioner as per Ex.P7 which is in support of the plaintiff's claim of road which is in existence and developed by the City Municipal Council. The learned judge had come to a bald decision that no public has come forward to support the plaintiff, as against this PW-2-C.Muniraju is a resident of the same area who had come before the lower court and given evidence and offered himself for cross examination. There is nothing on record to disbelieve the evidence of PW-1 & 2. The appellant submits that at the initial stages some of the public of the same area have approached this Hon'ble Court by filing impleading application which came to be rejected as the plaintiff has already moved the court for suitable relief. This aspect has not been looked into by the lower court. The learned judge has come to a bald conclusion that this particular road suit schedule property has not been shown in the village map. On the contrary the earlier village has grown into a City Municipal council and the entire agricultural area is vanished and in its place residential area has come up. In the present scenario this road cannot find a place in the old village map. The learned judge dismissed the suit basing on the just denials from the defendant No.1 & 2 and denial of the suggestions regarding the erection of electrical poles and other necessities on the road. The learned Judge also failed to appreciate the admissions of existence of 3 cross roads which connects the suit schedule property which joins Ramesh Road on the other end of the schedule property and erred in dismissing the suit. The learned judge took a strange view that the third defendant the City Municipal Council who failed to file the written statement and give evidence with regard to the existence of the road and disbelieved the version of the plaintiff and his documentary evidence. Hence erred in dismissing the suit.” 20. Sri Bhaskar, learned counsel for the appellant/ plaintiff, reiterating the grounds urged in the appeal memorandum, vehemently contended that the learned Trial Judge misdirected himself in not properly appreciating the material on record and dismissing the suit has resulted in miscarriage of justice. 21. Hence erred in dismissing the suit.” 20. Sri Bhaskar, learned counsel for the appellant/ plaintiff, reiterating the grounds urged in the appeal memorandum, vehemently contended that the learned Trial Judge misdirected himself in not properly appreciating the material on record and dismissing the suit has resulted in miscarriage of justice. 21. He further pointed out that the learned Trial Judge ignored the findings recorded by the Court Commissioner appointed in MFA No.6689/2002 in toto. 22. It is also his contention that there is a clear admission in the cross-examination of D.W-1 that electric poles, telephone poles are installed on either side of the road and therefore, the case of the plaintiff stood proved. 23. He further contended that the observation made by the learned Trial Judge that no public has come forward to support the claim of the plaintiff and therefore, suit is to be dismissed is, per se up against the deposition of P.W-2 who is not a relative of the plaintiff and a general public who made use of the suit property as a road. 24. He also contended that the finding recorded by the learned Trial Judge that the suit property having not been shown as a road in the village map of T. Dasarahalli is incorrect and existence of the suit property is evident from the commissioner's report and thus sought for allowing the appeal. 25. Learned counsel for respondent is absent, today. 26. In the light of the arguments put forth on behalf of the appellant/plaintiff, this Court perused the material on record meticulously. 27. On such perusal of the material on record, it is crystal clear that it is the plaintiff who has approached the Court for the relief of permanent injunction. Therefore, it was incumbent on the part of the plaintiff to prove the aforesaid issues. 28. In order to prove the claim of the plaintiff, plaintiff got examined himself as P.W-1. He has filed an affidavit in lieu of his examination-in-chief wherein he reiterated the contents of the plaint. He was cross-examined on behalf of first defendant wherein he has stated that land purchased by the father of the plaintiff bears the Sy.No.9/1 and that of the father of the defendant is situated in Sy.No.4. 29. He has specifically answered that the schedule road runs in between two survey numbers and he has left 10 to 12 feet space for the road. 29. He has specifically answered that the schedule road runs in between two survey numbers and he has left 10 to 12 feet space for the road. He has specifically answered that said road was in existence for 15 to 20 years but City Municipal Council made it into pakka road in the year 2005. He has answered further that to show that City Municipal Council of T.Dasarahalli has formed the said road, he has no documents. 30. He has also answered that Karnataka Electricity Board has erected poles in the year 2000 and defendants dumped the size stones to close down the road and he has informed the police and commissioner to stop the work. He admits that in the commissioner’s report, there is a specific finding that there is no existence of road but there is only existence of pathway. He denied that there is no road between two lands bearing Sy.No.9/1 and Sy.No.4. 31. In his further examination-in-chief, he has stated that schedule property measures 448 feet in length and 22 feet in width and he has stated that in some places width is more than 24 feet. In his further cross examination, he admits that Ex.P.8 is prepared by him and there are no directions shown in the said sketch. He also admits that length and width of the road is not mentioned in Ex.P.8. He also admits that existence of seventh cross is not shown in the Ex.P.8. He denies the suggestion that Ex.P.8 has no nexus with regard to Exs.P.9 to P.13. He admits that he obtained the copies of Ex.P.9 to Ex.P.13 in the year 2002. He admits that the house in Ex.P12(a) belongs to a person from Kerala whose name he does not know. He also admits that the house found in Ex.P13(a) belongs to Sri Krishna Nair. He admits that at the time of filing the suit, schedule property was 40 feet width and road shown in Ex.P13(a) runs in the east-west direction. 32. On behalf of the plaintiff, C. Munraju is examined as P.W.2 who has filed an affidavit in lieu of his examination-in- chief, wherein he deposed that he is the permanent resident of T.Dasarahalli Village and father of the first defendant had formed housing sites in the landed property and sold sites to various persons. 33. 32. On behalf of the plaintiff, C. Munraju is examined as P.W.2 who has filed an affidavit in lieu of his examination-in- chief, wherein he deposed that he is the permanent resident of T.Dasarahalli Village and father of the first defendant had formed housing sites in the landed property and sold sites to various persons. 33. He further deposed that property of the first defendant is not agricultural land and there was a kacha road in between the property of the plaintiff and defendant which later on turned out to be pakka road formed by the Government which runs from Ramesh road to Muttarayaswami temple road. He has deposed that the length of the road is about 448 feet. 34. He also deposed about the defendants obstruction f enjoyment of the road in closing down the said road and plaintiff approaching the City Municipal Council and the police in that regard. He further deposed that on one side the road connects to Ramesh road and on the other side it connects to second main road, fourth main road and there is a drainage on both sides of the road for rain water and sewage line is laid in the said road which is belonging to public. 35. In his cross examination, he admits that he is running a flour mill and the number of suits pending between plaintiff and defendant No.1. He has answered that ‘Kaccha’ (rough) road runs from east to west and his house is situated on the western side of the road. But his house is away from the suit property. He further answered that City Municipal Council has made the Kacha road into Pakka road in the year 2002. But there was no acquisition of the land for laying said road. 36. As against the said evidence on record, First defendant got examined himself as D.W.1 and in lieu of his examination- in-chief, he has filed an affidavit reiterating the contents of written statement and amended written statement and sought for dismissal of the suit. 37. In his cross-examination, he admitted that his father had farmed sites in Sy.No.4 between 1980 and 1985, but he is not aware of how many sites were formed in the entire land. 37. In his cross-examination, he admitted that his father had farmed sites in Sy.No.4 between 1980 and 1985, but he is not aware of how many sites were formed in the entire land. He has answered that Ex.P.8 is a tender notification published in ‘Vijaya Karnataka’, Kannada daily newspaper, dated 17.02.2004 and serial number 84 of it relates to the road in question. He admits that Ex.P.9 is the tender notification published in ‘Vijaya Karnataka’ newspaper, dated 11.06.2004. Serial number 34 relates to the road in question. 38. He admits that Police visiting the spot and directed the parties to maintain peace and tranquility. He admits that above six sites have been retained after formation of the layout and he has a document, but he has not placed the same before the Court. He admits that despite his objections, electricity department erected poles and drew electricity line. He also admits that Exs.P.9 to P.13 are the negative of schedule property and Exs.P.9 (a) and P.13 (a) are the positives. He admits that defendant No.3 formed the road in the year 2004 despite his objections. 39. Insofar as documentary evidence placed on record by the plaintiff are concerned, Ex.P.1 is the sale deed. There is no dispute about the same. Ex.P2 is the certified copy of the order sheet and other relevant papers in OS No.2814/1984 and there is no dispute about the same as they are Court records. Ex.P5 is the endorsement issued by Assistant Commissioner, Bengaluru Sub-Division. Bengaluru, wherein the petition filed by Veerabhadrachari against Pappanna got dismissed. Ex.P6 is the copy of legal notice dated 08.07.1996 and postal acknowledgment issued to Srikantachari, Rudrachari and Krishnachari on behalf of Pappanna. Ex.P7 is the commissioner's report along with memo of instructions. Ex.P8 is the copy of tender notification in Vijaya Karnataka. Exs.P9 to 13 are the negatives of schedule property. Ex.P14 is the rough sketch of the schedule property. Exs.P.15 to 19 are the negatives of the schedule property. 40. The above material evidence placed on record is sought to be re-appreciated on behalf of the appellant. 41. In the light of the argument put forth on behalf of the appellant, upon re-appreciation of the material on record, following points would arise for consideration: 42. Exs.P.15 to 19 are the negatives of the schedule property. 40. The above material evidence placed on record is sought to be re-appreciated on behalf of the appellant. 41. In the light of the argument put forth on behalf of the appellant, upon re-appreciation of the material on record, following points would arise for consideration: 42. Regarding point Nos.1 and 2 : In the case on hand there is no dispute that the father of the plaintiff and father of the defendant purchased the agricultural land in Sy.No.9/1 and Sy.No.4 of T.Dasarahalli village. So also they forming the sites in their respective lands are not in dispute. 43. However, according to the plaintiff, there exists a Government oni in between the two properties which was used by the general public. But, defendant high handedly started to obstruct the movement of the public which necessitated the plaintiff to approach the police, City Municipal Council authorities and ultimately to file the suit. 44. However, it is found from the material evidence on record though the defendant denied the existence of the road and maintained that it is pathway as is reported by the Advocate commissioner appointed by the Court in MFA No.6689/2002. There is a clear objection raised by the defendant, City Municipal Council has formed a ‘pakka’ (permanent) road. In other words, the very cause for the suit has come to an end. The photographs placed on record on behalf of the plaintiff would go to show the existence of the pathway and thereafter a pakka road being laid by the City Municipal Council. 45. In other words, whatever the plaintiff wanted to achieve at the time of filing the suit, is now achieved inasmuch as a road is laid by the City Municipal Council and it is being used by the public. 46. Learned trial Judge has noted that except P.W.2, there are no other complaints against the defendant about the closure of the road. 47. At any rate, plaintiff being not the owner of the suit property, he cannot maintain a suit for permanent injunction against the defendant. Further, assuming that he was fighting for and on behalf of the general public, suit was not filed under Order I Rule 8 of Code of Civil Procedure in representative capacity. 48. 47. At any rate, plaintiff being not the owner of the suit property, he cannot maintain a suit for permanent injunction against the defendant. Further, assuming that he was fighting for and on behalf of the general public, suit was not filed under Order I Rule 8 of Code of Civil Procedure in representative capacity. 48. Under such circumstances, when there is no proprietary right to establish over the suit property, suit for injunction especially when plaintiff is unable to show his lawful possession over the suit property, dismissal of the suit by the trial Court in the impugned judgment is just and proper. 49. In view of the same, point Nos.1 and 2 are answered in the negative. 50. Regarding point No.3 : In view of finding on point Nos.1 and 2, following order is passed: ORDER (i) Appeal is meritless and hereby dismissed. (ii) No order as to costs.