KANHANGAD MUNICIPALITY Vs. AMINA AND ORS.

JUDGEMENT

(1.) The first defendant in a suit for injunction, both prohibitory as well as mandatory, is the appellant. The plaint A schedule property belongs to the plaintiff and her children namely Faizal, Haris, Nazeer and Saleem. The plaint B schedule property is a portion of the plaint A schedule property. The first defendant is the Municipality within which the plaint schedule properties are situated. The second defendant is a contractor of the first defendant. The case of the plaintiff is that as directed by the first defendant, the second defendant has trespassed into a portion of the plaint A schedule property and formed a road through the same. The portion of the plaint A schedule property through which the road was formed is shown in the plaint as the plaint B schedule property. The plaintiff, therefore, claimed a decree of mandatory injunction directing the defendants to restore the plaint B schedule property to its original position. A decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule properties was also sought by the plaintiff. The defendants resisted the suit by filing a written statement. The case of the plaintiff that a road has been formed by the defendants through the plaint B schedule property has not been disputed by the defendants. Instead, they contended that the plaintiff and the owners of the properties lying adjacent to the plaint schedule properties have formed a road by dedicating portions of their properties long prior to the institution of the suit and that the first defendant has only tarred the road formed by them. The defendants also contended that even the tarring work undertaken by the first defendant was over before the institution of the suit and therefore, the plaintiff had no cause of action to institute the suit. The Trial Court rejected the contentions raised by the defendants and decreed the suit as prayed for. Though an appeal was preferred by the defendants challenging the decision of the Trial Court, the Appellate Court, on a reappraisal of the materials on record, confirmed the decision of the Trial Court. The first defendant, who is aggrieved by the concurrent decisions against them, has thus come up in this second appeal.

(2.) Heard the learned counsel for the appellant.

(3.) The learned counsel for the appellant contended that the action impugned in the suit is an action taken by the Municipality under Chapter XVII of the Kerala Municipality Act, 1994 ('the Act' for short) and therefore, the suit is not maintainable in view of the bar under Sec. 563 of the Act. Sec. 563 of the Act reads thus: