IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 RSA.No. 80 of 2006 ------------------------------- AS.319/2001 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1650/1999 of III ADDL.M.C.,TRIVANDRUM .................... APPELLANTS//APPELLANTS/DEFENDANTS: 1. ANIL KUMAR, RESIDING AT SANKARA VILASATHU VEEDU, KUZHIVILA, POOMKULAM, MUTTAKKADU DESOM, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM. 2. ARJUNAN NADAR, RESIDING AT DO. DO. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENTS/L.R'S OF THE RESPTS/L.R'S OF THE PLNFF: 1. VIJAYAN, KUNNUMPURAM, MEKKUMKARA PUTHENVEEDU, POONKULAM, KALLIYOOR. (DIED LRS R2 & R3). 2. USHAKUMARI, W/O.VIJAYAN, RESIDING AT VIJI BHAVAN, POOMKULAM, KALLIYOOR, THIRUVANANTHAPURAM. 3. VIJI, D/O.VIJAYAN, RESIDING AT DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.80 of 2006 -------------------------- JUDGMENT Defendants in O.S.No.1650/99 on the file of the Munsiff's Court, Thiruvananthapuram are the appellants herein. Predecessor in interest of the respondents filed the suit aforesaid for a decree of prohibitory injunction restraining the appellants/defendants from closing down or obstructing plaint B schedule pathway which runs through the northern side of plaint A schedule property belonging to him. Existence of a pathway on the northern side of plaint A schedule property is not a matter in dispute. 2. According to the appellants/defendants, that pathway proceeds to south-west and then towards south connecting the bund road on the southern side of plaint A schedule property to the road, which proceeds to Venganoor from Poonkulam Junction and that there is no road which runs from the eastern RSA 80/06 2 side of the Agricultural College Road connecting the said road to the aforesaid pathway running along the northern side of the property of the first appellant. Counsel for the appellants/ defendants submits that the trial court, though granted a decree as prayed for by the predecessor in interest of the respondents, has made it clear that the said decree will not interfere with their rights to execute the decree obtained by them in O.S.No.956/95 of the Munsiff's Court/Rent Control Court, Thiruvananthapuram. It is submitted that if the said decree is executed and construction of the northern portions of the eastern compound wall of the first appellant's property is effected, that will render the passage to the Agricultural College Road through the northern portions of the first appellant's property to be put an end to and the appellants/defendants will be satisfied with that. That means, the appellants/defendants are not having any grievance as regards the trial court decree in the instant case, namely, O.S.No.1650/99. RSA 80/06 3 3. The contention that is urged before me by the learned counsel for the appellants/defendants is that the first appellate court has not considered the judgment pronounced by this Court on 19.7.2004 in O.P.No.24372/01, a copy of which was produced as additional evidence before the first appellate court is also devoid of merit, as is seen from the copy of the said judgment passed on to me for perusal by the counsel for the appellants/ defendants. The said judgment shows that the original petition was filed for annulment of Exhibit P2 notification for acquisition of land along the northern portions of the first appellant's property so as to connect the Road to the Agricultural College with plaint B schedule pathway and for a direction to have Exhibit P4 representation filed by him before the Government, objecting to the acquisition being considered. As per the judgment in the said original petition, Exhibit P4 representation dated 1.8.2001 submitted by the first appellant/petitioner therein before RSA 80/06 4 the Secretary, Local Self Government was directed to be considered after hearing the petitioner and the fifth respondent/Grama Panchayat within a maximum period of three months and directing further that stay granted by the Government shall continue till the representation is considered and appropriate orders are passed thereon. Counsel for the appellants/defendants submits that though Exhibit P4 representation was given objecting to the acquisition, the first appellant has no objection in the northern portions of his property being acquired according to law paying compensation thereof, though that was not the direction obtained vide judgment in O.P.No.24372/01. 4. In the circumstances, I make it clear that direction in the judgment in the original petition that stay ordered by the Government shall continue need not be allowed to continue any further. I dispose of this Regular Second Appeal in limine confirming the judgments of the courts below and clarifying that there shall be no bar for the RSA 80/06 5 Government proceeding with acquisition of the northern portions of the property of the first appellant for the purpose of connecting plaint B schedule pathway with the road leading to the Agricultural College. Execution of the decree in O.S.No.956/95, subject to which the decree was passed in favour of the predecessor in interest of the respondents in O.S.No.1650/99, shall be subject to acquisition, if any, made by the Government of the northern portions of property of the first appellant for the purpose of connecting plaint B schedule pathway with the Road leading to the Agricultural College that lies on the western side of the property of the first appellant. Acquisition proceedings, if any, shall be expedited forthwith on production of a copy of this judgment by the first appellant before the appropriate authorities. 20th February, 2009 (K.P.Balachandran, Judge) tkv