IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 25^TH DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943 RSA NO. 391 OF 2007 AGAINST THE JUDGMENT AND DECREE DATED 06.03.2007 IN AS 79/2004 OF SUB COURT, KASARAGOD AGAINST THE JUDGMENT AND DECREE DATED 26.02.2004 IN OS 432/2001 OF ADDITIONAL MUNSIFF'S COURT, KASARAGOD APPELLANT/APPELLANT/3RD DEFENDANT:

ELEZEBETH PINTO, W/O.JAMES RODRIGUES, RESIDING AT KUDALMERKALA, KUDALMERKALA VILLAGE, KASARAGOD TALUK, P.O.PERUMUDE.

BY ADVS.

SRI.K.G.GOWRI SHANKAR RAI SRI.SURESH KUMAR KODOTH RESPONDENTS/RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT:

1 K.RADHAKRISHNA NAYAK, S/O.GOVINDA NAYAK, RESIDING AT PERMUDA IN KUDALMERKALA VILLAGE, KASARAGOD TALUK,, P.O.PERMUDA.

2 THE PAIVALIKE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PAIVALIKE VILLAGE AND POST, KASARAGOD TALUK.

BY ADVS.

T.MADHU V.V.ASOKAN (SR.)

S.AMINA C.R.SARADAMANI RENJISH S. MENON SHAHID AZEEZ SRI. M.I MAYANKUTTYMATHER,SC THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

K.BABU, J.

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R.S.A No.391 of 2007 ---------------------------------------

Dated this the 25^th day of February, 2022 JUDGMENT Defendant No.3 in O.S.No.432/2001 on the file of the Munsiff's Court, Kasaragod is the appellant. The plaintiff and defendant No.2 are the respondents.

2. The plaintiff instituted the Original Suit against the defendants for a mandatory injunction directing defendant No.3 to demolish the building constructed by defendant No.1 in the 'B' schedule property. Defendant No.3 is the assignee of the property wherein the building was constructed. Defendant No.2 is Paivalike Grama Panchayath.

3. Material facts relevant for the adjudication of this appeal are as follows:

3.1. The plaintiff and defendant No.1 are siblings. They purchased plaint 'A' and 'B' schedule properties as per sale deed No.1293/1998 of S.R.O Manjeshwar on 12.06.1998. Subsequently, the plaintiff and defendant No.1 partitioned the property as per registered partition deed No.2958/2000 of S.R.O Manjeshwar in the year 2000. In the partition, 'A' schedule property was allotted to the plaintiff and 'B' schedule property was allotted to defendant No.1. The siblings began to enjoy the properties separately. At the time of partition, there was an old building in the 'B' schedule property. A PWD road runs in the east-west direction on the north side of the properties.

3.2. On 25.12.2000, defendant No.1 started construction of a building in 'B' schedule property. The disputes between the siblings commenced with the construction of the building in 'B' schedule. The plaintiff raised an objection against the construction of the building alleging that it is in violation of Sec.220(b) of the Kerala Panchayat Raj Act, 1994 (for short 'the Act'). In view of the objections raised by the plaintiff, the Secretary of the Grama Panchayath issued notice dated 30.01.2001 to defendant No.1 directing him to stop the construction with immediate effect. However, defendant No.1 proceeded with the construction of the building. Thereafter, the plaintiff issued a registered notice dated 03.03.2001 to defendant No.2, the Grama Panchayat, seeking to demolish the building allegedly constructed in violation of Sec.220(b) of the Act. Defendant No.2 has not taken any steps to get the construction demolished.

4. Defendant No.1 resisted the suit contending that the construction of the building was not in violation of Sec.220(b) of the Act. Defendant No.1 further contended that there is no PWD road on the northern side of the property as pleaded by the plaintiff. Defendant No.1 also pleaded that the description and boundaries of the plaint schedule property as shown in the plaint are incorrect and misleading.

5. Defendant No.2, the Grama Panchayath also resisted the suit. Defendant No.2 pleaded that the suit is not maintainable as it is opposed to the provisions of Sec.249(1)(a) and (b) of the Act. The