High Court Kerala High Court

Chacko Chacko vs Anitha Raju on 8 July, 2008

Kerala High Court
Chacko Chacko vs Anitha Raju on 8 July, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 20545 of 2008(U)


1. CHACKO CHACKO, KOYITHARA HOUSE,
                      ...  Petitioner
2. MOLY, W/O.CHACKO CHACKO, KOYITHARA

                        Vs



1. ANITHA RAJU, RAFEKHA BHANU VILASOM
                       ...       Respondent

2. MANJU THOMAS, RAFEKHA BHANU, VILASOM

                For Petitioner  :SRI.S.SREEKUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :08/07/2008

 O R D E R
                    M.SASIDHARAN NAMBIAR, J.
                     ...........................................
                    WP(C).No. 20545                OF 2008
                     ............................................
          DATED THIS THE               8th DAY OF JULY, 2008

                                JUDGMENT

Petitioners are the defendants and respondents, the

plaintiffs in O.S.255 of 1999 on the file of Munsiff Court,

Punalur. The suit is for injunction. The plaint schedule property

is 2.84 acres in Survey No.538/1/218 of Valakode Village of

Pathanapuram Taluk. In the suit, petitioners, defendants filed

I.A.2385 of 2002, an application under Order XXXIX Rule 1 and 2

of Code of Civil Procedure, restraining respondents/plaintiffs

from trespassing into the property shown in the written

statement. Under Ext.P6 order, learned Munsiff granted an

order of injunction in their favour. Respondents challenged that

order before Sub Court, Kottarakara in FAO 55 of 2004.

Learned Sub Judge, under Ext.P7 order, finding that the

property for which an order of injunction was granted under

Ext.P6 is having an extent of 4 acres 66 cents, held that

petitioners are not entitled to the order, especially when there is

no counter claim raised in the suit and set aside Ext.P6 order.

This petition is filed under Article 227 of Constitution of India.

2. Learned counsel appearing for petitioner was heard.

WP(C) 20545/2008 2

The argument of the learned counsel is that Ext.P2 report

submitted by the Commissioner establish that plaint schedule

property is not within the boundaries shown in the plaint and

though extent in Survey No.538/1/218 is shown in the plaint as

2.84 acres, actual extent is only 2.61 acres and it is in survey

No.538/1/218A and not in the survey number shown in the

plaint. Learned counsel also pointed out that respondents have

subsequently filed an application to amend the plaint to

incorporate the survey number, boundary and extent shown by

the Commissioner in the report, but that application was

dismissed and though it was challenged before this court, the

writ petition was also dismissed under Ext.P3 judgment.

Learned counsel argued that in view of the order originally

obtained by respondents against petitioners, respondents

constructed a fence in the property of petitioner and are

obstructing the tapping of rubber trees, which they are not

entitled to and therefore learned Sub Judge was not justified in

interfering with the order. Learned counsel also argued that

even if plaint schedule property does not form part of the

property claimed by petitioner in the written statement,

respondents are claiming that property as plaint schedule

WP(C) 20545/2008 3

property and therefore the order granted by the trial court under

Ext.P6 is to be restored.

3. On hearing the learned counsel, I do not find any reason

to interfere with Ext.P7 order passed by learned Sub Judge.

While granting an order in favour of petitioners under Ext.P6,

learned Munsiff did not bear in mind the fact that even

according to petitioners, the property claimed by them in the

written statement, for which an order of injunction was sought,

is not the plaint schedule property. According to the petitioners,

plaint schedule property is different and the property claimed in

the written statement which belongs to them. As rightly found by

learned Sub Judge, petitioners did not raise a counter claim in

respect of the property claimed by them in the written

statement. In such circumstances, when the plaint schedule

property is only having an extent of 2.84 acres and that too,

when the Commissioner found that the extent of the property

available in survey No.538/1/218A is only 2.61 acres and when

petitioners are contending that plaint schedule property is

different from the property identified by the Commissioner,

learned Munsiff was not justified in granting an order, which was

rightly corrected by learned Sub Judge under Ext.P7 order. In

WP(C) 20545/2008 4

such circumstances, petition is dismissed. Learned Munsiff is

directed to dispose the suit, as expeditiously as possible, at any

rate, within five months from the date of receipt of a copy of this

judgment, untrammelled by any observation in Ext.P7 order or

this judgment.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-