JUDGMENT

This Regular Second Appeal is directed against the judgment and decree dated 30.3.2019 in A.S.No.1/2018 on the file of the third Additional District Court, Kozhikode (hereinafter referred to as 'the first appellate court') confirming the judgment and decree dated 26.9.2017 in O.S.No.337/2001 on the file of the Principal Munsiff's Court-II, Kozhikode (hereinafter referred to as 'the trial court').

2. The appellant is the 2nd defendant before the trial court. The 1st respondent is the plaintiff and the 2nd respondent is the 1st defendant therein. The suit was filed for recovery of possession and consequential permanent prohibitory injunction. For brevity, the parties are hereinafter referred to as referred in the original suit unless otherwise stated.

3. The averments in the plaint in brief are as follows:-

Plaint A schedule property having an extent of 61 cents of land was set apart to the share of the plaintiff by virtue of a partition deed executed on 17.9.1981. The plaint A schedule property belongs to the plaintiff. The plaint B and C schedule properties belong to the 1st and 2nd defendants respectively which they admittedly obtained as 'kudikidappu' within the A schedule property. The plaintiff has been in possession and enjoyment of plaint A schedule property excluding the plaint B and C schedule properties. After obtaining 'kudikidappu' rights in favour of the defendants 1 and 2, they have made several attempts to trespass into the plaint A schedule property and are trying to annex a portion of the same. There are no clear cut boundaries separating the properties. There is a 2 feet wide way through the plaint A schedule property for the ingress and egress to the property of the 1st defendant. The way to the property of the 2nd defendant is only 4 feet wide which is through the northern boundary of the plaint A schedule property. The defendants are attempting to widen their respective pathways. Hence, a suit was filed for permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property.

4. A commission was taken out during the pendency of the proceedings and based on the commission report the plaint was amended. The commissioner reported that the 2nd respondent who is the 1st defendant in the suit is in wrongful possession of 2 cents of plot EFGHA marked in the commission report and shown as D schedule in the plaint and the 2nd defendant is in wrongful possession of 2 cents of plot marked as UVWXY and shown as E schedule in the plaint. The prayer in the plaint was amended claiming recovery of possession of the plaint D and E schedule properties.

5. There is no dispute between the plaintiff and the 1st defendant. However, the defendants filed written statement and additional written statement raising the following contentions:-

6. The 2nd defendant filed O.A.No.1409/1970 before the Land Tribunal for 'kudikidappu' right. During the pendency of the original proceedings, the matter was settled in the presence of mediators. Thereby the plaintiff's father Alancherry Gopi relinquished 6.85 cents of land appurtenant to kudikidappu house and a pathway having a length of 24 feet and a width of 6 feet in favour of the 2nd defendant in the year 1970. As per the scheme of the Kerala Land Reforms Act (hereinafter referred to as 'the KLR Act'), the 2nd defendant was entitled to get 10 cents as 'kudikidappu'. The plaintiff, who is the daughter of the second wife of Alancherry Gopi, acquired right in the plaint A schedule property excluding the property of the 2nd defendant only on his death. Subsequent to the death of Alancherry Gopi, the plaintiff attempted to construct a compound wall encroaching into the property of the 2nd defendant and also attempted to reduce the width of the pathway leading to the property of the 2nd defendant. The plaintiff is not having possession of the entire plaint A schedule property as claimed by her in the plaint. Even if the plaintiff is having any rig