Liability for unauthorized construction arises when property access rights are limited to ingress and egress without exclusive ownership.

JUDGMENT

The plaintiff, non-suited concurrently by the Additional District Court-I, Mavelikkara in A.S. No.42 of 2022, as well as the Munsiff Court, Kayamkulam in O.S. No.96 of 2017, has come up in the present appeal aggrieved by the judgment and decree rendered by the courts below.

2. The appellant/plaintiff instituted the aforesaid suit against the respondents/defendants for a permanent prohibitory injunction restraining them and their men from obstructing the right of the plaintiff over the B schedule pathway, which is having 7 feet width and 7.50 metre length, which starts from the plaint A schedule property and stretches up to the northern road viz, Eruva-Kakanad Public road. The plaintiff erected a gate on the northern side of plaint B schedule property abutting the Eruva-Kakkanad road, and attempts were made by the defendants to remove the gate and hence the suit. The defendants appeared and resisted the suit by contending that the plaintiff had only been given the right of access to the pathway, and she had no absolute right to erect a gate at the end of the pathway abutting the public road, and hence the counterclaim was lodged. The existence of the pathway was further found by the Advocate Commissioner who submitted Ext.C1 report and C1(a) sketch. As regards the claim of the plaintiff for ingress and egress to the plaint schedule property, the trial court found that the plaint B schedule property is the only access, but then, as regards the proprietary right of the plaintiff over B schedule pathway, the claim of the plaintiff based on Ext.A1 was negated and, it was found that as per Ext.A1, the plaintiff has only a right of ingress and egress through the pathway and no proprietary right vests with her. Thus, the trial court found that the erection of the gate at the northern end of the plaint B schedule property was unauthorised. As regards the claim for perpetual injunction, the defendants submitted that they are not in any way intending to obstruct the right of the plaintiff over the B schedule pathway. Accordingly, the suit was dismissed, and the counterclaim was decreed, and a mandatory injunction was issued to the counterclaim defendant/appellant herein to remove the counterclaim D schedule gate, failing which, the counterclaim plaintiffs/respondents herein were given liberty to execute the decree through the process of the court. Aggrieved, the plaintiff preferred an appeal before the Additional District Court-I, Mavelikkara. The first appellate court, on reappreciation of the evidence, found that the counterclaim plaintiffs were entitled to succeed and accordingly dismissed the appeal and confirmed the decree in the counterclaim and hence the appeal.

3. This Court had initially granted an interim protection to the appellant on finding that there is a possibility of settlement. The matter was taken on board on 26.5.2025, and after an extensive hearing, this Court found that no substantial question of law arises for consideration. But then, the apprehension of the plaintiff was that if the gate is removed, third parties can access the road, and there will be certain security concerns for the plaintiff required to be addressed and therefore, this Court felt that a scope of settlement must be explored and accordingly, interdicted further proceedings in E.P. No.7 of 2025 on the files of the Munsiff Court, Kayamkulam. Thereafter, several attempts were made in order to see whether the disputes can be amicably settled.

4. Today, when the matter is taken up for consideration, the learned counsel for the respondents submits that his clients are not willing to explore the possibility of settlement further inasmuch as the plaintiff does not have any proprietary right over the pathway and there are remaining properties of the respondents which t