JUDGMENT

Dated this the 25th day of July, 2022 The original petition is filed to set aside the judgment in C.M.A.No.50/2016 (Ext.P5) of the Court of the Additional District Judge -III, Alappuzha.

2. The skeletal facts, relevant for the determination of the original petition, are : the petitioners are the additional plaintiffs 2 to 6 in O.S.No.55/2016 on the file of the Court of the Principal Munsiff, Alappuzha, which was filed by their predecessor-in-interest named Antony, against the respondents, inter alia, seeking a decree to declare that they have title and possession of the plaint, schedule items Nos.1 and 2 property. The original plaintiff had filed I.A.No.310/2016 in the suit, for an order of temporary prohibitory injunction. The 1st respondent had filed Ext.P2 written objection to the application. The original plaintiff also took out an Advocate Commissioner, who filed Ext.P3 report. Ext.P3 report shows that there is no pathway as alleged by the respondents. The trial court after considering the pleadings and materials on record and Ext.P3 report passed an order of temporary injunction, restraining the respondents from trespassing into the plaint schedule property. The 1st respondent had filed C.M.A.No.50/2016 before the Court of the Additional District Judge, Alappuzha, assailing Ext.P4 order. The Appellate Court, by the impugned Ext.P5 judgment, has reversed Ext.P4 order. Ext.P5 is erroneous and unsustainable in law. Hence, the original petition.

3. Heard; Sri.B.Pramod, the learned counsel appearing for the petitioners, Sri.K.S.Hariharaputhran, the learned counsel appearing for the 1st respondent and Sri.R.Raj Pradeep, the learned counsel appearing for the 2nd respondent – Panchayath.

4. Sri.B.Pramod argued that the Appellate Court has gone wrong in unsettling Ext.P4 order. It is proved and established that the respondents have no right over the plaint schedule property and, therefore, they cannot disturb the peaceful possession of the petitioners.

5. Sri.Hariharaputhran countered the above submission and argued that the suit itself is not maintainable. The petitioners have, inter alia, sought a decree to restrain the statutory authority – the 2nd -

respondent from discharging its statutory functions – from measuring item No.1 property, as per proceeding No.D-3-19602. The plaint schedule property is a purampokku land, being used by the general public. The petitioners have no right to restrain the 1st respondent or any person in the locality using a public pathway.

6. Sri.Raj Pradeep, the learned counsel for the Panchayath, contended that the property is a panchayath land, falling within the purview of Section 2(18) of the Kerala Panchayath Raj Act. The trial court erroneously passed an order of temporary injunction, restraining the 2nd respondent from discharging its statutory duties. The Appellate Court has rightly set aside Ext.P3 order. The original petition only deserves to be dismissed.

7. The point is whether there is any illegality or error in Ext.P5 judgment passed by the Appellate Court.

8. The petitioners have filed Ext.P1 suit, seeking the following reliefs:-

“a) To declare the plaintiff's absolute title and exclusive possession over the plaint schedule item no.1 and 2 properties.

b) To pass a decree of permanent injunction restraining the defendants and men under them from trespassing upon the plaint schedule item no.1 or making any demarcation or measurement under or by virtue of proceeding no.B3 19602 or any other proceedings or interfere with plaintiff's peaceful possession and enjoyment of the same or commit any waste and mischief therein.

b) To realise the cost of the suit from the defendant and his assets, and c) To grant such other appropriate relief that the court deems fit to grant in the nature of the above case.“

9. The Appellate Court has, on the basis of the admission of the original plaintiff, in paragraph No.6 of the petition, that the 1st respondent occasionally passes through the western ridge port