SUBHADRA Vs. SECRETARY, THRIKKAKARA GRAMA PANCHAYATH

JUDGEMENT

(1.) The appellant is the plaintiff in OS No. 817/2003 on the files of the I Additional Munsiff's Court, Ernakulam, as well as the appellant in AS No. 1/2005 on the files of the I Additional Sub Court, Ernakulam. The aforesaid suit was filed for a decree for permanent prohibitory injunction restraining the defendant from cutting and making a concrete pathway through the plaint schedule property. The defendant raised a preliminary objection challenging the maintainability of the suit on the ground that the plaintiff has not issued statutory notice under Sec. 249(1) of the Kerala Panchayat Raj Act, 1994, against the Secretary before instituting the said suit.

(2.) Per contra, the plaintiff contended that the suit was one for an injunction simpliciter restraining the defendant from cutting and making a concrete pathway through the plaint schedule property without consent of the plaintiff and the cause of action had arisen on an apprehension that the defendant will do some unlawful activity, by way of trespassing into the property and cutting trees, without the consent of the plaintiff.

(3.) On the aforesaid rival pleadings, the Trial Court considered the question of maintainability of the suit in view of S.249 of the Kerala Panchayat Raj Act, 1994 and dismissed the suit on a finding that the suit is not maintainable for want of notice under S.249 of the Kerala Panchayat Raj Act. Though the plaintiff had challenged the said order before the lower Appellate Court, that Court also concurred with the aforesaid finding and upheld the judgment. The legality and propriety of the findings, whereby the Courts below concurrently found that the suit is not maintainable, are assailed in this Regular Second Appeal.