K. Harilal, J.

The appellant is the plaintiff in O.S. No.817/2003 on the files of the Additional Munsiff's Court, Ernakulam, as well as the appellant in A.S. No.1/2005 on the files of the Additional Sub Court, Ernakulam. The aforesaid suit was filed for a decree for permanent prohibitory injunction restraining the defendant from cutting and making a concrete pathway through the plaint schedule property. The defendant raised a preliminary objection challenging the maintainability of the suit on the ground that the plaintiff has not issued statutory notice under Section 249(1) of the Kerala Panchayat Raj Act, 1994, against the Secretary before instituting the said suit.

2. Per contra, the plaintiff contended that the suit was one for an injunction simpliciter restraining the defendant from cutting and making a concrete pathway through the plaint schedule property without consent of the plaintiff and the cause of action had arisen on an apprehension that the defendant will do some unlawful activity, by way of trespassing into the property and cutting trees, without the consent of the plaintiff.

3. On the aforesaid rival pleadings, the trial court considered the question of maintainability of the suit in view of Section 249 of the Kerala Panchayat Raj Act, 1994 and dismissed the suit on a finding that the suit is not maintainable for want of notice under Section 249 of the Kerala Panchayat Raj Act. Though the plaintiff had challenged the said order before the lower appellate court, that court also concurred with the aforesaid finding and upheld the judgment. The legality and propriety of the findings, whereby the courts below concurrently found that the suit is not maintainable, are assailed in this Regular Second Appeal.

4. Heard the learned counsel for the appellant and the learned Standing Counsel appearing for the respondent Panchayat.

5. The sum and substance of the arguments advanced by the learned counsel for the appellant/plaintiff is that for instituting the suit against the Panchayat or its officers for the prevention of an unlawful activity, a statutory notice, under Section 249 of the Panchayat Raj Act, 1994, is not required, as such an activity will not come under the part of an official duty.

6. On the other hand, the learned Standing Counsel for the respondent Panchayat contended that prior notice under Section 249 of the Panchayat Raj Act is a statutory mandate which requires that unless notice is issued, as contemplated under Section 249, the suit is not maintainable, whatever be the allegation in the plaint. There was an unlawful encroachment from the part of the appellant and the present suit was intended to prevent the said unlawful encroachment. In view of the submissions made at the Bar, the short point that arises for consideration is, whether the courts below are justified in finding that the suit is not maintainable, as the same was instituted without issuing statutory notice under Section 249 of the Panchayat Raj Act.

7. For considering the maintainability of the suit, it is incumbent upon the court to consider at first, the plaint averments and the relief sought for in the plaint. It is needless to say that the maintainability of the suit depends upon the averments in the plaint and the relief sought for therein. In the instant case, the suit is one for an injunction restraining the defendant Secretary from cutting and making concrete pathway through the plaint schedule property without the consent of the plaintiff. Suffice it to say, without the consent of the owner of a property, the Panchayat has no right to encroach upon his property or cut and remove trees for widening of a road. Thus, the plaintiff is apprehensive of an unlawful activity from the part of the respondent Secretary.

8. Coming to Section 249(1) of the Kerala Panchayat Raj Act, 1963, it is apposite to take notice of the relevant provision, which is extracted below:

"Institution of suits against authorities of Panchayats, their officers