Plaintiffs failed to establish a legal entitlement for mandatory injunction on pathway maintenance due to final government notification conditions for a reserved forest.

JUDGMENT :

S. SOUNTHAR, J.

1. The plaintiffs in the suit are the appellants. The suit was filed for mandatory injunction directing the defendants to maintain the pathway leading to Deviyaru Estate from the foothills of Sethur Village. The suit was dismissed by the trial Court. The appeal filed by the plaintiffs was also dismissed. Aggrieved by the concurrent findings, the plaintiffs have come by way of this Second Appeal.

2. According to the plaintiffs/appellants, Deviyaru Estate originally belonged to Sethur Zameen and the same was purchased by the plaintiffs. According to the plaintiffs, there is a pathway from Devathanam Village to Deviyaru Estate via Sethur foothills through the forest area. The pathway has been in existence from the time of Zameenthar. The same was originally maintained by the Zameenthar and after purchase by the plaintiffs, the pathway was maintained by the plaintiffs. The Tamil Nadu Government and the Forest Department also maintained the pathway. In the year 1971, the Tamil Nadu Government had given financial sanction for conversion of the pathway in to a motor way. Subsequently, in the forest settlement proceedings, the appellate authority passed an order in R.O.C.A.23-191192/82, dated 10.12.1982, stating that the Forest Department shall maintain the pathway leading to their District. It was also observed in the said order that if the plaintiffs wanted to maintain the same, they can do so by getting permission from the District Conservator of Forest. The Forest Department failed to maintain the pathway as per the said order and all the request made by the plaintiffs to Forest Department and Government for maintenance of the road went in vain. The suit pathway had become damaged due to absence of maintenance and hence, access through the same had become difficult. In these circumstances, the plaintiffs were constrained to file a suit for mandatory injunction to defendants to maintain the suit pathway.

3. The first defendant filed a written statement and the same was adopted by the defendants 2 and 3. In the written statement, it was contended by the defendants that 1982 order referred to by the plaintiffs was passed, when the pathway was forest area. Subsequently, as per the Government Gazette Notification, dated 30.03.1989, the suit pathway has become part of reserved forest. In the Government notification, it was clearly mentioned that the plaintiffs were entitled to maintain the pathway after getting prior consent from District Forest Officer. It was also contended by the defendants that subject to the availability of financial resources, the Forsest Department could maintain the pathway and on the other hand, the plaintiffs can maintain the same with the prior consent of the Department. The pathway damaged by rain and severe cyclone in the year 1993 was repaired and made available for use. When the department was not sanctioned with sufficient finance, it is open to the plaintiffs to maintain the pathway with the prior consent of the competent authority. The plaintiff was not entitled to demand maintenance of the pathway as a matter of right in a notified reserved forest area and consequently, the defendants sought for dismissal of the suit.

4. Before the trial Court, 12^th plaintiff was examined as P.W.1 and19 documents were marked as Ex.A1 to Ex.A19. On behalf of the defendants, one witness was examined as D.W.1 and the Gazette Notification issued under Section 16 of “the TAMIL NADU FOREST ACT , 1882” (hereinaf