Notice under Section 249 of the Panchayat Raj Act is not necessary for suits against ultra vires actions by the Panchayat.

JUDGMENT

1. The plaintiffs in a suit for prohibitory and mandatory injunction are the appellants. The plaintiffs are husband and wife. According to the plaintiffs, the plaint schedule property, which has an extent of 11.59 acres of land, belongs to them as per Ext.A1 sale deed. There is a canal passing north- south through the eastern portion of the said 11.59 Acres of land. The defendants are the Grama Panchayat and two Ward members. They encroached into the eastern portion of the plaint schedule property and constructed a granite foundation in the middle of the eastern boundary of the plain schedule property. Hence, the suit was filed seeking a mandatory injunction to remove the said basement constructed by the defendant on the eastern portion of the plaint schedule property and also to restrain them from encroaching into the plaint schedule property.

2. The defendant, Nos.1 to 3, filed a Written Statement contending inter alia that the suit is bad for want of Notice under Section 249 of the Kerala Panchayat Raj Act . The water channel passing though the eastern side of the plaint schedule property is a puramboke thodu. The Grama Panchayat formulated a scheme for constructing a retaining wall-cum-pathway, including the said eastern thodu puramboke and the said work was estimated at Rs.88,500/- under the scheme of SGRY. The allegation that the plaintiff has 11.59 Acres of property situated within well-defined boundaries is not correct. The eastern canal starts from the southern pump house of Kundara Ceramic, leads towards the north, and joins with Ashtamudi Lake. The said water channel has been in existence for more than 100 years. The plaintiff has encroached into some portion of the said eastern thodu puramboke. The allegation that the water channel has a width of 45 cm is not correct. Actually, the width of the water channel is 2.5 meters. The said water channel is vested with the Panchayat, and the Panchayat took steps only to protect the water channel.

3. On the side of the plaintiff, the 1^st plaintiff was examined as PW1 and Exts.A1 to A3 documents were marked. On the side of the defendants, the 2^nd defendant was examined as DW1 and Exts. B1 to B3 documents were marked. The Mahazar, Commission Report and the Rough Sketch prepared by the Commissioner were marked as Exts. C1, C1(a) and C1(b).

4. The Trial Court decreed the suit restraining the defendants from trespassing into the plaint scheduled property and making any construction therein and further directing to remove the construction made on the eastern side of the property in north-south within two months, failing which the plaintiff is allowed to get it removed at the expense of the 1^st defendant. The defendants filed an appeal before the First Appellate Court as A.S.No. 342 of 2008, and the First Appellate Court allowed the appeal, setting aside the judgment and decree passed by the Trial Court.

5. This Regular Second Appeal is admitted on the following substantial question of law:

Whether the First Appellate Court was justified in relying on Ext.B1, a photocopy of the Settlement Plan without evidence as to whether the line marked and relied on by the First Appellate Court is a stream and there is puramboke land in between the properties?

6. When this appeal was taken for hearing, there was no representation for the respondents on 29.01.2025, and after hearing the learned counsel for the appellant and after going through the records, this Court formulated an additional substantial question of law as follows:

Whether the First Appellate Court is justified to hold that the suit is not maintainable for want of Notice under Section 249 of the Panchayat Raj Act?

7. I heard the learned counsel for the appella