JUDGMENT : Sri.T.K.Radhakrishnan, the appellant in this Regular Second Appeal instituted a suit as O.S.No.190/2015 of the Munsiff's Court, Changanacherry (hereinafter referred to as 'the trial court') for declaration of title and consequential recovery of possession over the plaint schedule item No.3 and also for a decree of mandatory injunction directing the defendants to restore item No.3 property to its original status and other reliefs. 2. The averments made in the plaint in brief are capitulated below for better appreciation:- The plaint schedule item No.1 property comprised in Re.Sy.No.255/21 of Kurichy Village having an extent of 1.10 ares of land was purchased by the plaintiff as per the sale deed No.274/2011 dated 3.2.2011. Likewise, an extent of 90 sq.m. of property in the very same survey number was purchased by the plaintiff on 19.5.2011 as per the sale deed No.1102/2011 of the SRO, Changanacherry. The plaintiff has been residing with his family in the above property for the last 4 years. He purchased the property from one Paulose. On the eastern side of the plaint schedule property is the Sankarapuram-Ikkaramattam road and towards the west-east, the Ayiroor-Vadakkethil road is situated. Connecting the above said roads on its southern side was a beaten track having a width of 2 feet and length of 22¾ feet. The above said property is being used by the defendants 8 and 9 who are residing on the western side of item No.1 property. Under the leadership of the 8th defendant, the western property owners trespassed upon the plaint schedule item Nos.1 and 2 and constructed a road with a width of 3.65 m. by grabbing 1.75 cents of property from the plaintiff and concreting the road annexing with the pathway. Subsequent to the trespass, the road is named as the Asariparambu-Puthenpurackal road. They have clandestinely included the road and the portion trespassed upon as the property of the Panchayat and entered in the asset register of the Panchayat subsequently. The defendants have no matter of right to annex a purely private pathway of the plaintiff and construct a road. 3. The 1st and 2nd defendants filed a joint written statement contending that administrative sanction was accorded for the work of the road in question on 26.10.2013 by utilizing the MLA fund for the financial year 2012-2013. The sanction was accorded on the basis of the approved estimate. The work was completed on 14.2.2014. 3. The 1st and 2nd defendants filed a joint written statement contending that administrative sanction was accorded for the work of the road in question on 26.10.2013 by utilizing the MLA fund for the financial year 2012-2013. The sanction was accorded on the basis of the approved estimate. The work was completed on 14.2.2014. As per the asset register of Kurichy Panchayat, the width of road is 3 metres and the length is 75 metres. 4. The defendants 3 to 6 also contended that the way is included in the asset register of the Panchayat. The 7th defendant is the Secretary of the Kurichy Panchayat. The 7th defendant had not filed any written statement denying the averments contained in the plaint. 5. The defendants 8 and 9 filed a joint written statement disputing the identity of the property. According to them, the boundary descriptions are clearly mentioned in the sale deed itself. Subsequently, on 19.5.2011, a false sale deed was got registered. The boundaries are clearly specified in the above sale deeds. The 9th defendant filed O.S.No.225/2015 seeking declaration of easement right. The vendor Paulose also filed O.S.No.165/2015 against the plaintiff alleging that the sale deed dated 19.5.2011 is vitiated by fraud. 6. Reiterating the contentions of the defendants 1 to 6, the 10th defendant would contend that revenue officials never made any corrections in the revenue records. 7. The trial court framed requisite issues. On the side of the plaintiffs, PWs.1 to 5 were examined and marked Exts.A1 to A42. On the side of the defendants, DWs.1 and 2 were examined and marked Exts.B1 to B20. Exts.C1, C1(a) and C1(b) were marked. Ext.X1 was also marked. 8. After the trial, the trial court dismissed the suit with costs of all the defendants except the 7th defendant. The plaintiff filed the appeal before the Additional District Court-V, Kottayam (hereinafter referred to as 'the first appellate court') as A.S.No.50/2018. The appeal was dismissed confirming the judgment and decree of the trial court. Hence, the plaintiff preferred this Regular Second Appeal. For the sake of brevity, the parties shall be referred to as referred in the original suit unless otherwise stated. 9. The appeal was dismissed confirming the judgment and decree of the trial court. Hence, the plaintiff preferred this Regular Second Appeal. For the sake of brevity, the parties shall be referred to as referred in the original suit unless otherwise stated. 9. At the time of admission, the following substantial question of law was framed for consideration:- “Whether in the absence of pleadings and proof of dedication of the property as a public way, by the defendants, whether the findings on that score by the Courts below are illegal especially when the contesting defendants had instituted a suit for easement by prescription as O.S.228/14 which was dismissed?” 10. Now with reference to the above substantial question of law, this Court is called upon to consider as to whether the judgment and decree of the court below suffers from any patent error or illegality warranting interference in second appeal. 11. Heard Sri.C.S.Manilal, the learned counsel for the appellant, Sri.T.Jayan, the learned Government Pleader for the respondents 1, 2 and 4 and Sri.T.M.Khalid, the learned Standing Counsel for the 7th respondent and Sri.V.Philip Mathew, the learned counsel for the respondents 8 and 9. 12. The learned counsel for the appellant contended that the appellant purchased an area of 2 ares of land as per Exts.A1 and A2 sale deeds. According to him, the private party respondents forcibly attempted to cut open a road through the property to connect the same road to another road. The learned counsel would contend that the property belongs to the plaintiff and he has been in absolute possession and enjoyment of the same. According to him, land tax for the property was remitted by him and the 10th defendant Village Officer issued possession certificate in favour of him in the year 2011. He also contended that he had availed a home loan by pledging the aforesaid property from the Co-operative Bank. According to the learned counsel, the Local Authority is not entitled to forcibly acquire a private property except in accordance with Section 178 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act') either by way of acquisition or purchase or by surrender. Elaborating on the submission, the learned counsel further pointed out that there was no surrender of the property on the part of the plaintiff or his vendor Paulose to widen the pathway. Elaborating on the submission, the learned counsel further pointed out that there was no surrender of the property on the part of the plaintiff or his vendor Paulose to widen the pathway. It was argued that a private pathway cannot be declared as a public road so long as there is a dedication known to law. 13. On the other hand, the learned counsel for the contesting respondents contended that the appellant had been trying to encroach upon the public pathway vested with the Panchayat and to get into his possession. It is their common contention that all the public pathways within the territorial jurisdiction of the local body are vested with the Panchayat concerned under Section 169 of the Act. The learned Standing Counsel for the 7th respondent Panchayat submitted that the disputed road has been widened and concreted in the year 2012-13 by the Block Panchayat spending an amount of Rs.1,50,000/-from the funds of Sri.C.F.Thomas, the then Member of the Legislative Assembly. It is his contention that the asset register of the Panchayat is not a statutory register, but maintained for the purpose of locating the place for the public works. All other respondents contended that the appellant had been trying to encroach upon the public pathway vested with the Panchayat which is an important road used by several families in the locality. Thus, it was submitted that the interest of a private individual should not supersede the right of the public at large. 14. The plaintiff was undisputably the owner-in-possession of the plaint schedule item No.1 property of Kurichy Village having an extent of 1.10 ares of land and 90 sq.m. of property in the very same survey number as per Ext.A1 sale deed dated 3.2.2011 and Ext.A2 sale deed dated 19.5.2011 respectively. The plaintiff has been residing in the above property. During the trial of the case, an Advocate Commissioner was appointed with the assistance of the Taluk Surveyor to locate plaint schedule item Nos.1 and 2 properties. Accordingly, the commissioner filed Ext.C1 report, Ext.C1(a) survey plan and Ext.C1(b) rough sketch respectively. The commissioner located the property based on Exts.A1 and A2 and the resurvey plan. The plaint schedule item Nos.1 and 2 are located in Ext.C1(a) plan as FGHIJKF. It is an area of 2 ares of land comprised in Re.survey No.255/8 of Kurichy Village. Accordingly, the commissioner filed Ext.C1 report, Ext.C1(a) survey plan and Ext.C1(b) rough sketch respectively. The commissioner located the property based on Exts.A1 and A2 and the resurvey plan. The plaint schedule item Nos.1 and 2 are located in Ext.C1(a) plan as FGHIJKF. It is an area of 2 ares of land comprised in Re.survey No.255/8 of Kurichy Village. The plaintiff has been paying land tax to the above said properties by virtue of Exts.A4 and A5 tax receipts. As per the tax receipts, the above said properties are comprised in Sy.No.255/21 of Kurichy Village. 15. Ext.A1 sale deed was executed by Paulose in favour of the plaintiff wherein the southern boundary is stated as a private pathway. In Ext.A2 sale deed also, reference of the way on the southern side is stated. When PW2 the surveyor was examined before the trial court, he stated that no public pathway has been provided in the Re.survey plan. It is the definite case of the plaintiff that the way claimed is only a private pathway having a width of 2 feet which was later widened by trespassing upon the property of the plaintiff forcibly. The commissioner located the existing pathway having an extent of 83 sq.m. of land as FGJKF and the remaining area is shown as GHIJG in Ext.C1(a) plan. 16. It is the main contention of the defendants 8 and 9 that the plaintiff purchased the plaint schedule item No.1 property after voluntarily surrendering the property for the public pathway. According to them, subsequently, the plaintiff purchased plaint schedule item No.2 property with an intention to grab a portion of the public pathway to obstruct the entry of the public as of right. Consequently, the 9th defendant filed O.S.No.228/2014 for declaration of his easement right over the pathway. The vendor Paulose filed O.S.No.165/2015 alleging that Ext.A2 sale deed was vitiated by fraud. Paulose purchased the property having an area of 5 cents on 10.5.1990 from one Thomas for providing a private pathway and later he sold the property to 7 other persons after giving them the right to use the pathway. The 9th defendant is one of the purchasers of the property from the aforesaid Paulose. 17. After the trial, O.S.No.228/2014 and O.S.No.165/2015 were dismissed by the trial court. No appeals were filed challenging the judgments and decrees passed in the aforesaid cases. The 9th defendant is one of the purchasers of the property from the aforesaid Paulose. 17. After the trial, O.S.No.228/2014 and O.S.No.165/2015 were dismissed by the trial court. No appeals were filed challenging the judgments and decrees passed in the aforesaid cases. Thus, the judgments and decrees in the aforesaid cases had become final. This is a clear indication that no public pathway was in existence as contended by the defendants on the southern side of the plaint schedule item Nos.1 and 2 as identified by the commissioner in Ext.C1(a) plan. There is no reference in the revenue records that the southern boundary of the plaintiff is a public pathway. The respondents had not produced the re.survey plan to substantiate that the way on the southern side is a public pathway. It has come out in evidence that the vendor purchased the property for his private way. The defendants 8 and 9 admitted that the vendor purchased 5 cents of property on the southern side of the plaint schedule property for a private way which was later sold to different persons. Having found that the plaint schedule item No.2 property is necessary to widen the pathway, the vendor filed a suit before the court challenging Ext.A2 sale deed. Simultaneously, the 9th defendant also filed a suit for declaration of easement right. Easement right is a precarious right claimed over the property of another person. Needless to say that, the 9th defendant filed a suit for easement right over the plaint schedule item No.2 property admitting the title of the plaintiff over the plaint schedule item Nos.1 and 2 properties. The said suit ended in dismissal. 18. No written statement had been filed by the 7th defendant Panchayat before the trial court. Hence, every allegation of fact in the plaint shall be taken to be admitted as against the 7th defendant. The contesting respondents are not entitled to raise contentions for and on behalf of the 7th defendant as well. 19. It is an admitted fact that the 1st defendant accorded administrative sanction for the work of the disputed road in question on 26.10.2013 by utilizing the fund of Sri.C.F.Thomas, MLA for the financial year 2012-13. The sanction was granted on the basis of the approved estimate and accordingly, the work was completed on 14.2.2014. The way is also included in the asset register of the Panchayat. 20. The sanction was granted on the basis of the approved estimate and accordingly, the work was completed on 14.2.2014. The way is also included in the asset register of the Panchayat. 20. It is the common contention of the contesting defendants that the property was surrendered free of costs. Thereafter, the Local Authority will become the owner of the property by virtue of Section 169 of the Act warranting separate notification by the Government under Section 4 of the Act. However, Section 178 of the Act mandates that any immovable property which is required by the Panchayat for a public purpose may be acquired under the provisions of the Land Acquisition Act and on payment of compensation awarded under the said Act. The proviso further provides that the Panchayat is competent to acquire immovable property either through private purchase or any free surrender. As per the above provision, the Panchayat can claim right over a private property either by acquisition or by purchase or by surrender. There is no case for the contesting defendants that there was valid surrender of the property to the Panchayat by the plaintiff. It is a fact that the plaintiff has been residing with his family in the plaint schedule item Nos.1 and 2 properties. It is difficult to believe that a major portion of the property was surrendered by the plaintiff to the Panchayat for widening a pathway. 21. The way, which was not in existence at the time of transfer, as provided under Exts.A1 and A2, but which are necessary for the enjoyment of the property for the residential purpose for which it was transferred, is available to the plaintiff and the private party defendants. A way permitted to be used by a definite number of persons who purchased the land from the original owner Paulose, is certainly a private way which has its origin by way of sale deeds and such right cannot be forcefully widened and converted into a public right after use by some others as well to raise the presumption of dedication. Hence, the finding of the trial court that the private pathway assigned the character of public pathway is without any basis. 22. The next question arises for consideration is whether the user of the present way subsequent to its annexation gives any valid right to the private party defendants to claim public right. Hence, the finding of the trial court that the private pathway assigned the character of public pathway is without any basis. 22. The next question arises for consideration is whether the user of the present way subsequent to its annexation gives any valid right to the private party defendants to claim public right. On the principles of the doctrine of lost grant, when a right has been exercised by the persons of the locality for a sufficiently long time openly, uninterruptedly, peacefully, it can safely be presumed that it had a legal origin. The length of use and the alleged trespass made on 14.2.2014 would irresistibly lead to the inference that the disputed pathway was formed after the widening of the existing private pathway. The practical distinction between prescription at common law and doctrine of lost grant is that where the claim is by prescription, the length of enjoyment constituted a title and on the other hand, if the right is claimed by lost grant, the long enjoyment afforded but a presumption of title. There is no evidence in this case to hold that the people of the locality have been using the present pathway openly, uninterruptedly and peacefully for a continuous long period. Hence, it cannot be presumed that this right had a legal origin and the people of the locality had the right to use the way. Thus, the way in dispute is not a public pathway as contended by the contesting respondents and the principles of lost grant have no application in this case. 23. Ext.B7 asset register would show that the way has found a place therein. Relying on Natarajan.R. v. Village Officer, Kanayannur Taluk & others [ 2013 (2) KHC 26 ] and Mariam Beevi v. Secretary, Athirampuzha Grama Panchayat, Kottayam & others [ 2015 (3) KHC 199 ], it is contended that the evidence on record would reveal item No.3 public road being used by the public for the last several years and even prior to 1994. It was further contended that in view of Section 169 of the Act, it can only be concluded that Ext.A2 was executed in respect of item No.3 road vested in the Panchayat as per the asset register. In this connection, it is pertinent to note that Ext.B7 entry was made without any date. It was further contended that in view of Section 169 of the Act, it can only be concluded that Ext.A2 was executed in respect of item No.3 road vested in the Panchayat as per the asset register. In this connection, it is pertinent to note that Ext.B7 entry was made without any date. It is the definite case of the plaintiff that the western property owners trespassed into the property of the plaintiff on 14.02.2014 and constructed and concreted a road with a width of 3.65 metres by grabbing 1.75 cents of property from the plaintiff. It is specifically stated in the plaint that they concreted the road annexing the plaint schedule item No.2 with the existing pathway. The contention was not disputed by the 7th defendant Panchayat. According to the 1st and 2nd defendants, the work was completed on 14.2.2014. In the revenue records, the property still belonged to the plaintiff and the Village Officer issued possession certificate in 2011 in favour of the plaintiff. It has come out in evidence that there was no Panchayat committee decision for inclusion of the disputed pathway as a 'way' in the register of the assets of the Panchayat. The defendants have no case that the land was surrendered by the plaintiff to the Panchayat for widening the pathway. In the above circumstances, the asset register cannot be relied on to prove that the disputed pathway is a public pathway as contended by the defendants. If the land is surrendered by way of an express application to the Government, the Local Authority is entitled to claim the disputed land as a public pathway though formal orders are passed by the statutory authority under the Land Relinquishment Act and the Rules thereunder. The 7th defendant who remained exparte to the suit is not entitled to widen the private way as a public road to serve the public purpose of providing access to and fro as held in Mariam Beevi's case (supra). In the case at hand, there was no surrender by the plaintiff either expressly or impliedly. Hence, the entries made in the asset register are not clear conferment of the rights over the property in favour of the Panchayat as held in Roy Abraham v. State of Kerala & others [ 2021 (4) KHC 520 (DB)]. In the case at hand, there was no surrender by the plaintiff either expressly or impliedly. Hence, the entries made in the asset register are not clear conferment of the rights over the property in favour of the Panchayat as held in Roy Abraham v. State of Kerala & others [ 2021 (4) KHC 520 (DB)]. In Natarajan's case (supra) the question arose, once the land has been surrendered for widening the road, can the land be taken back for the reason that the authorities failed to pass an order either accepting or rejecting the surrender. The dictum laid down therein is not applicable in this case. 24. The plaintiff being a member of the Scheduled Caste coming from a village background challenged his rights to hold property and instituted both criminal and civil cases against the defendants. The 7th defendant Panchayat has no case that the plaint schedule item No.3 property has been taken over by the Panchayat for public purpose. In the written statement filed by the contesting defendants, it was admitted that the road was widened for the use of the public using MLA fund. The plaintiff forcibly expropriated his property when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution of India. Article 31 of the Constitution guaranteed the right to private property, which could not be deprived without due process of law and upon just and fair compensation. 25. Consequent to the Constitution (44th Amendment) Act, 1978 the right to property ceased to be a fundamental right. However, the right continued as a human right under Article 300-A of the Constitution. Article 300-A of the Constitution provides that no person shall be deprived of his property save by authority of law. 26. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chennai & others [ (2005) 7 SCC 627 ] it was held in paragraph 6 as under:- “6.…..Having regard to the provisions contained in Article 300-A of the Constitution of India, the State in exercise of its power of 'eminent domain' may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.” 27. In N.Padmamma & others v. S.Ramakrishna Reddy & others [ (2008) 15 SCC 517 ] it was held in paragraph 21 of the judgment as under:- “21. If a right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300-A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed.” 28. In Delhi Airtech Services Private Limited & another v. State of Uttar Pradesh & another [ (2011) 9 SCC 354 ] the Apex Court recognizes the right to property as a human right in paragraph 30 as under:- “30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. "Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed-bed which must be conserved if other constitutional values are to flourish, is the consensus among political thinkers and jurists.” 29. In Jilubhai Nanbhai Khachar & others v. State of Gujarat & another [1995 Supp (1) SCC 596], the Apex Court held in paragraph 48 as under:- “48. …..In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation.” 30. Going by the contentions of the contesting respondents, it is their case that the plaintiff had orally consented to surrender the land. It is their further case that by way of continuous use, the land was dedicated for the use of the public. It is also contended that the plaintiff stated the width of the pathway differently in a complaint filed before the Honourable Chief Minister. It is well settled principle of law that the plaintiff could not have been forcibly dispossessed of his property without resorting to the provisions of law. It is also contended that the plaintiff stated the width of the pathway differently in a complaint filed before the Honourable Chief Minister. It is well settled principle of law that the plaintiff could not have been forcibly dispossessed of his property without resorting to the provisions of law. It has come out in evidence that the plaintiff deprived of receiving just compensation and suffered a forcible dispossession for the reason that the plaintiff objected to the need of the public. The sum and substance of the contention was that the plaintiff did not yield to the convenience of the public for widening the pathway. As noticed earlier, some of the respondents are the organs of the State. The plaintiff's right over the private property has been infringed upon without requisite sanction of law. The Local Self Govt. Institution has not complied with the procedure for acquisition or any other permissible statutory mode as provided under Section 178 of the Act. Section 169 of the Act does not enable the contesting defendants to take a private property forcibly for widening the pathway. The party respondents cannot be permitted to take the plea of vesting of a private property with the Panchayat to gain legal title over the property of the plaintiff. It has come out in evidence that the functionary of the State took over the possession of the land belonging to one of the weaker sections of the society without resorting to the procedure relied on for acquisition, purchase or surrender or any other permissible statutory mode. 31. No doubt, the plaintiff has been divested of his legitimate right, title and possession over the plaint schedule item No.3 property without being paid any compensation in accordance with law. By way of abundant caution, the learned counsel for the appellant submitted that in case the relief cannot be granted in this appeal, the appellant may be granted suitable compensation by moulding the relief. It is not possible for this Court to grant compensation to the plaintiff in exercise of powers under Section 100 of the C.P.C. in second appeal. In fact, what the Local Authority did is compulsory acquisition of the plaint schedule item No.3 property without paying requisite compensation. It is not possible for this Court to grant compensation to the plaintiff in exercise of powers under Section 100 of the C.P.C. in second appeal. In fact, what the Local Authority did is compulsory acquisition of the plaint schedule item No.3 property without paying requisite compensation. It has come out in evidence that, an attempt was made to overreach the plaintiff by including the disputed road in the asset register of the Panchayat subsequent to the illegal act done by the party respondents. 32. In view of the aforesaid facts and circumstances of the present case, the plaintiff is entitled to get his title declared over the plaint schedule item No.3 property and also to recover the same in accordance with law. The plaintiff is also entitled to get a decree of mandatory injunction directing the defendants to restore the plaint schedule item No.3 property to its original position after dismantling the construction made for widening the road. After restoring plaint schedule item No.3 into its original position, the respondents are directed to make necessary corrections in the revenue records in respect of the plaint schedule item Nos.1 and 3 properties as private properties of the plaintiff. The defendants are restrained from trespassing into the plaint schedule item No.1 and 3 properties or cut open any pathway therein by way of decree of permanent prohibitory injunction. For the sake of clarity, Ext.C1(a) plan will form part of the decree. The substantial question of law framed by this Court has been answered as hereinabove. In the result, this Regular Second Appeal is allowed. The impugned judgment and decree are set aside. The suit is consequently decreed as indicated in paragraph 32 supra without prejudice to the rights and liberties of the State and its organs to acquire the disputed land in accordance with law in which case the plaintiff would be at liberty to claim for compensation before the competent authority. The plaintiff is entitled to get cost throughout from the defendants. Pending applications, if any, stand closed.