IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR MONDAY, THE 13^TH DAY OF SEPTEMBER 2021/22ND BHADRA, 1943 RSA NO.1166 OF 2019 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 which arose out of 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 APPELLANT/APPELLANT/DEFENDANT No.2:

THAYYIL SREEMATHI, AGED 73 YEARS, W/O.LATE VELAYUDHAN, MUTHALAKANDI PARAMBA, OLAVANNA AMSOM AND DESOM, KOZHIKODE, PIN-673 019.

BY ADVS.

SRI.M.VIVEK RABINDRANATH SRI.V.T.MADHAVANUNNI RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT No.1:

1 ALANJERI RAJESWARI, AGED 46 YEARS, W/O.MURALEEDHARAN, KALLAI HOUSE, THATTARAKKULAM PARAMBA, CHERUVANOOR VILLAGE, OLAVANNA AMSOM AND DESOM, NALLALAM (PO), KOZHIKODE-673 027.

2 THAZHATHEYIL DASAN, AGED 73 YEARS, S/O.LATE AMMUKUTTY, MUTHALAKANDI PARAMBA, OLAVANNA AMSOM AND DESOM, OLAVANNA(PO), KOZHIKODE-673 019.

R1 BY ADVS.

SRI.MUNEER AHMED SRI.MUDASSER AHMED THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON 13.09.2021 DELIVERED THE FOLLOWING:

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 2^nd defendant before the trial court. The 1^st respondent is the plaintiff and the 2^nd respondent is the 1^st 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 1^st and 2^nd 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 1^st defendant. The way to the property of the 2^nd 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 2^nd respondent who is the 1^st 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 2^nd 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 1^st defendant. However, the defendants filed written statement and additional written statement raising the following content