IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 OP.No. 9188 of 2001(R) ------------------------------ PETITIONER(S): ---------------------- C.H.ABOOBACKER, S/O. LATE B.ABDULLA HAJI, AGED 57 YEARS, RESIDING AT BADAKEKARA HOUSE, CHERKALA, CHENGALA VILLAGE & POST, KASARAGODE DISTRICT. BY ADV. MR.SURESH KUMAR KODOTH RESPONDENT(S): -------------------------- 1. THE COMMISSIONER FOR LAND REVENUE GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, KASARAGODE AT KAHANGAD. 3. THE TAHSILDAR (LAND ASSIGNMENT), KASARAGODE. 4. NOOR MUHAMMAD, S/O. SAHA HAMEED MUNDOL, THEKKIL P.O., KASARAGODE DISTRICT. 5. SAFIYA, W/O. C.H.MOHAMMAD KUNHI SHUKKUR BANGH, CHERKALA, P.O., CHENGALA, KASARAGODE DISTRICT BY ADVS. MR.GEORGE SEBASTIAN MR.GRASHIOUS KURIAKOSE MR.K.A.LALAN FOR R5 GOVERNMENT PLEADER MR.I.V.PRAMOD FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.20596/2001 IN 14788/2001 IN OP. NO.9188/2001 DISMISSED 25.05.2009 SD/- ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ASSIGNMENT ORDER DT. 15.4.95. P2:- COPY OF THE PATTA ISSUED IN FAVOUR OF THE 4TH RESPONDENT. P2(a):- COPY OF THE ENGLISH TRANSLATION OF EXT.P1. P2(b):- COPY OF THE ENGLISH TRANSLATION OF EXT.P2. P3:- COPY OF THE ORDER DT. 31.8.98 ISSUED BY THE 2ND RESPONDENT. P4:- COPY OF THE ORDER DT. 27.4.2000 ISSUED BY THE IST RESPONDENT. P5:- COPY OF THE PETITION DT. 2.3.01 SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT. TRUE COPY P.A. TO JUDGE TSS ANTONY DOMINIC, J. ================ OP NO. 9188 OF 2001 (R) ===================== Dated this the 25th day of May, 2009 J U D G M E N T Petitioner submits that he is the owner of 48 cents of land comprised in R.S.No.208 of Chengala Village where he is residing. It is stated that on the western side of his property, there was a puramboke land having an extent of 20 cents situated in RS No.111-4B2, which according to the petitioner, was in his possession and beneficial enjoyment. It is stated that on 15/4/85, the aforesaid puramboke land was assigned to the 4th respondent, who in turn assigned the property to the 5th respondent sometime in 1991. 2. It is stated that the petitioner's only access to the public road was through the aforesaid puramboke land and since his right of way was obstructed by the original assignee and his assignee namely respondents 4 and 5, petitioner filed an appeal to the 2nd respondent. It is stated that the 2nd respondent conducted a local inspection and issued Ext.P3 order. A reading of Ext.P3 shows that the 2nd respondent came to a clear finding that the only access that the petitioner had to the public road was OP 9188/01 :2 : through the puramboke land in question. It is stated that since the conditions of assignment, a translated copy of which is produced in this original petition as Extd.P2(a) and (b), provides for exclusion from assignment any right of way in the assigned land, the 2nd respondent held that the assignee is bound to maintain pathway through the land. On that basis, the 2nd respondent ordered that the assignees shall restore the pathway and maintain the same. 3. It would appear that the 5th respondent who got the assigned property transferred in his favour way back in 1991, filed a revision before the 1st respondent and Ext.P4 order has been issued by the 1st respondent. In Ext.P4, the 1st respondent held that obstruction to the pathway by itself can be no reason to cancel the assignment, but however ordered that the pathway should be restored and maintained. Petitioner submits that despite all this, the obstruction created initially by respondent No. 4 and continued by respondent No.5 still continues and complaining of such obstruction, he filed Ext.P5 before the 2nd respondent. It is stated that the 2nd respondent did not take any action to remedy the situation and with that complaint the original petition was filed. 4. As regards the removal of obstruction is concerned, a OP 9188/01 :3 : reading of Exts.P3 and P4, appellate order and the revisional order show that respondents 1 and 2 are unanimous in their view. According to both the aforesaid respondents, the assignee has no right to obstruct the right of way available through the land and therefore the assignee was bound to maintain the same. A reading of Ext.P3 also discloses that the only access that the petitioner had was through the pathway available in the land referred to above. 5. Since the complaint in this original petition is mainly regarding the obstruction offered by respondents 4 and 5 to the pathway which was available through the assigned land and as respondents 1 and 2 have both ordered that the assignee has no right to obstruct the pathway, the original petition is disposed of directing that in the event there is any obstruction caused to the pathway in question, it will be open to the petitioner to approach the 1st respondent, who thereupon shall take necessary action for its removal as ordered in Exts.P2 and P3. ANTONY DOMINIC, JUDGE Rp