IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

WEDNESDAY, THE 4^TH DAY OF SEPTEMBER 2024 / 13TH BHADRA, 1946 WP(C) NO. 41435 OF 2022 PETITIONER:

SUBAIDA. N.K., AGED 61 YEARS D/O. NECHIKKADAN HAMZA VII, 334, CHANDAKKUNNU, MUMMULLI, NILAMBUR, MALAPPURAM DISTRICT, PIN - 679 329.

BY ADVS.

P.RAVINDRAN (SR.)

M.R.SABU LAKSHMI RAMADAS APARNA RAJAN SREEDHAR RAVINDRAN RESPONDENTS:

1 NILAMBUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY NILAMBUR, MALAPPURAM DISTRICT - 679 329

2 RAJANI, COUNCILLOR, WARD NO: 7, NILAMBUR MUNICIPALITY, MALAPPURAM DISTRICT - 679 329

3 CHEERAMKUZHIYIL VELAYUDHAN, S/O. KUNHITHAVANI, POOLAMALA VELIYAM PADAM, NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329 * ADDL. R4 AND R5 ARE IMPLEADED

4 THE SECRETARY, NILAMBUR MUNICIPALITY, MALAPPURAM DISTRICT – 679 329

5 THE SUB INSPECTOR OF POLICE, NILAMBUR POLICE STATION, NILAMBUR, 679 329 *ADDL. R4 AND R5 ARE IMPLEADED AS PER ORDER DATED

03.09.2024 IN I.A. NO. 1 OF 2024.

R1 BY SRI.I.V.PRAMOD, STANDING COUNSEL BY ADVS.

P.SAMSUDIN K.RAKESH MILAN RACHEL MATHEW LIRA A.B.

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

The petitioner stated to be the owner of House No. VII, 334, Chandakkunnu, Mummulli of Nilambur Municipality, where she along with her sister owns 20.50 cents of land in Re-survey No. 671/1 in Ernad Taluk, Nilambur Village, Malappuram District. A purchase certificate was issued for the said land in the year 1976. On the southern side of the property, there is a footpath having a width of three feet which leads to a private holding lying beyond the petitioner's property. The third respondent, who is stated to be an activist of the Communist Party of India (Marxist) along with certain others, trespassed into the property of the petitioner and destroyed the boundary of the property and widened the footpath by encroaching 0.74 cents of land, which constrained the petitioner to file a suit as O.S. No. 411/1997 before the Munsiff Court, Manjeri.

2. The Munsiff Court accepted the contention of the petitioner and ordered a mandatory injunction, directing the restoration of the encroached land. The encroached land was shown as plaint B schedule property which was directed to be restored to its former state and as part of plaint A schedule property. This was done relying on Exts.C3 to C6 Commission Reports and also repelling the contention of the defendants therein that the plaint B schedule property belonged to the Panchayat. Though the Panchayat was not a party in the said suit, it was the contention of the defendants therein, that it was Panchayat property. The Civil Court found that an extent of 0.74 cents from plaint A schedule property was lost and the same was scheduled as plaint B schedule property. An appeal was filed against Ext.P2 judgment and decree as A.S. No. 133/2014, which was also dismissed by judgment dated 02.03.2016. It is submitted that the petitioner, thereafter, filed E.P. No. 545/2018 in the said suit and the delivery report of the Amin dated 18.01.2020 is produced as Ext.P4. The petitioner contends that the third respondent approached the second respondent, who is the Councilor of the Municipality and again attempted to trespass into the property which was the subject matter of the suit and demolished the fence, separating the petitioner's property.

3. The petitioner had also made Ext.P5 complaint to the police on

27.11.2022 apart from Ext.P6 representation before the Municipality pointing out the encroachment done by respondents 2 and 3 in the name of the Municipality. The petitioner contends that the second respondent being an elected Councilor of the Municipality should not have committed such highhanded acts. It is also the submission of the learned Senior Counsel for the petitioner that if the Municipality wanted plaint B scheduled property, they have to take steps known to law, for acquiring and widening the road and could not have t