IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939 RSA.No. 1425 of 2011(C)

AGAINST THE JUDGMENT AND DECREE DATED 21-11-2011 IN AS NO.108/2008 of ADDITIONAL DISTRICT COURT(AD HOC-II)KASARAGOD AGAINST THE JUDGMENT AND DECREE DATED 30.07.2005 IN OS NO.240/2004 of ADDITIONAL MUNSIFF'S COURT, KASARAGOD APPELLANT/APPELLANT/PLAINTIFF:

K.PREMALATHA BHANDARY

51 YEARS, W/O.LATE BEERANNA BHANDARY, RESIDING AT KANAKATHODY, NETTANIGE VILLAGE, KASARAGOD TALUK, P.O.KINNINGAR, KASARAGOD TALUK. BY ADV.SRI.K.G.GOURI SANKAR RAI RESPONDENTS/RESPONDENTS/DEFENDANTS:

1. SACHINDANANDA ALVA AGED 56 YEARS.

2. K.SAVITHRI AGED 54 YEARS.

3. K.GEETHALAXMI AGED 52 YEARS.

4. K.RAMANATHA ALVA AGED 50 YEARS.

5. K.JEEVARAJ ALVA AGED 48 YEARS.

6. K.RAVEENDRA ALVA AGED 46 YEARS.

7. K.ASHOKA ALVA AGED 44 YEARS.

ALL ARE CHILDREN OF KRISHNAPPA ALVA, RESIDING AT KANAKATHODY IN NETTANIGE VILLAGE, KASARAGOD TALUK, P.O.KINNINGAR.

BY ADV. SRI.M.SASINDRAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

A.HARIPRASAD, J.

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Dated this the 12^th day of March, 2018

JUDGMENT

Plaintiff in a suit for declaration, consequential permanent prohibitory injunction and mandatory injunction is the appellant. The reliefs claimed in the suit are as follows:

“a) For a declaration that there is absolutely no pathway or road existing in or through the plaint 'A' schedule property either for the defendants or any one else.

b) Consequently for a permanent prohibitory injunction restraining the defendants, their men, agents or dependents from interfering with the peaceful possession and enjoyment of the A schedule property by the plaintiff.

c) For a mandatory injunction directing the defendants to restore the levelled portion 7 to 9 feet width of the suit property to its original condition.

d) Directing the defendants to pay full costs of this suit.

e) For such other and further reliefs as the court deems fit to grant under the circumstances of the case.”

2. Relevant pleadings of the parties are as follows: Properties comprised in R.S.No.64/1 and 63/1 of Nettanige Village of Kasaragod Taluk were originally Government Assessed Waste Lands (Government AW Lands, in short). Portions of these properties were assigned to one K.Sumathi Rai as per Ext.A2 order of assignment of the year 1982. The assignment was free from any encumbrance. There was no pathway, either public or private, in or through the properties so assigned and therefore, no pathway or road was reserved. Sumathi Rai was in possession and enjoyment since the date of Ext.A2 assignment. She sold a portion of the properties to the appellant as per a registered sale deed in the year 1993 (Ext.A1). Appellant is the owner-in-possession of the property since the date of Ext.A1 assignment. The said property is described in the plaint A schedule. Mother of the respondents/defendants, late Saraswathi, filed a petition before the Sub Divisional Magistrate, Kasaragod (SDM, in short) raising false contentions to the effect that the appellant had caused obstruction to an alleged road passing through plaint A schedule property. It was alleged that a public road is in existence through plaint A schedule property. SDM initiated proceedings under Section 133 of the Code of Criminal Procedure, 1973 (Cr.P.C., in short) by registering M.C.No.58 of 1996. Appellant/plaintiff appeared and denied the existence of a public road. Simultaneously, Saraswathi challenged Ext.A2 assignment before the Revenue Divisional Officer, Kasaragod (RDO, in short) by filing an appeal. That appeal was dismissed as per Ext.A3. Against Ext.A3 order Saraswathi preferred a revision before the Government of Kerala and the revision was dismissed by the Secretary concerned as per Ext.A4 order. In the appeal and revision, the respondents and their mother had pleaded that n