High Court Kerala High Court

Ramsh vs Prabhakaran on 30 November, 2009

Kerala High Court
Ramsh vs Prabhakaran on 30 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 31222 of 2009(O)


1. RAMSH,AGED 39 YEARS,
                      ...  Petitioner
2. ANILAN,S/O.PUSHPAKARAN,

                        Vs



1. PRABHAKARAN,
                       ...       Respondent

2. SWARNAM @ SWARNAKUMARI AMMA,

                For Petitioner  :SRI.RENJITH THAMPAN

                For Respondent  :SRI.G.SREEKUMAR (CHELUR)

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :30/11/2009

 O R D E R
                  S.S.SATHEESACHANDRAN, J.
                 ----------------------------------------
                   W.P.(C).No.31222 OF 2009
                     --------------------------------
        Dated this the 30th day of November 2009
         ----------------------------------------------------------

                              JUDGMENT

Petitioners are the plaintiffs in O.S No.1701 of

2007 on the file of the Principal Munsiff Court, Irinjalakkuda.

Suit is for declaration, fixation of boundary and injunction,

both prohibitory and mandatory. Suit was laid to restrain

the defendant from encroaching upon ‘B’ schedule property

which is stated to be a road vested with the panchayat. ‘A’

schedule is described as the property belonging to the

defendant. As social workers, the plaintiff and others have

planted some saplings beside the ‘B’ schedule panchayat

road over which, according to the plaintiffs, the defendants

have absolutely no right. Apprehending threat of trespass

over ‘B’ schedule road, plaintiffs, two in number, petitioners

herein, moved the above suit for injunction. The defendants

resisted the suit claim by filing a written statement.

Petitioners/plaintiffs moved an application for appointment

of an advocate commissioner to identify the ‘B’ schedule

pathway after fixing the southern boundary of ‘A’ schedule

W.P.(C).No.31222 OF 2009 Page numbers

property belonging to the defendant with the assistance of

a surveyor, which was objected to by the defendants. After

hearing both sides, the court below dismissed that

application vide Ext.P4 order holding that necessary

particulars for identification of the ‘B’ schedule pathway are

not spelt out in the description of that property in the plaint.

Impeaching the propriety and correctness of Ext.P4 order,

the writ petition is filed invoking the supervisory jurisdiction

vested with this court under Article 227 of the Constitution

of India.

2. I heard the counsel on both sides. From the

submissions made and perusing the ‘B’ schedule description

it appears that necessary particulars are not made out in the

plaint for a proper identification of ‘B’ schedule and also in

fixing the southern boundary of ‘A’ schedule property.

Ext.P4 also reveal that another suit filed by the defendants

as O.S No.268/2006 wherein the panchayat is made a

defendant in which identical questions arise for adjudication

is pending before the court. Panchayat has not been made a

party in the present suit by the petitioners/plaintiffs is

W.P.(C).No.31222 OF 2009 Page numbers

another reason which prompted the court to dismiss the

commission application. Considering the submissions made

and the facts and circumstances presented, it appears that a

joint trial of both the suits may be feasible. But I leave it to

the court below to consider, after going through the

pleadings in both the cases, whether such trial is essential,

and needless to point out any decision for having a joint trial

shall be ordered only after hearing the parties in both suits.

Learned counsel appearing on both sides submit that joint

trial of the two suits is feasible and more practicable. In case

a joint trial of the two suits is ordered, the plaintiffs in the

present case may move for a fresh commission for

determination of the southern boundary of the ‘A’ schedule

with ‘B’ schedule pathway. Ext.P4 order passed by the court

will not stand in the way of the court if any such commission

application is moved by the plaintiffs again and its disposal

in accordance with law. Subject to the above observations,

the writ petition is closed.


                                 Sd/- S.S.SATHEESACHANDRAN,
            //TRUE COPY//                   JUDGE

vdv                                     P.A TO JUDGE