High Court Kerala High Court

William Dias vs Josephkutty on 2 November, 2009

Kerala High Court
William Dias vs Josephkutty on 2 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 31018 of 2009(O)


1. WILLIAM DIAS, S/O.LATE R.S.DIAS,
                      ...  Petitioner
2. MARY DIAS,
3. RITA CORREYA,
4. HARRIET CORREYA,
5. SAROJA, W/O.LATE SIMON DIAS,
6. SYNDIA DIAS,  D/O.DO.,

                        Vs



1. JOSEPHKUTTY, S/O.PAILY,
                       ...       Respondent

2. PAPPACHAN, S/O.DO. IN DO.  DO.

3. SABU, S/O.ANTONY PERUMPILLY,

4. SAJU, S/O.  DO., RESIDING AT  DO.DO.DO.

5. KUNJAN, S/O. DO.,

6. JOSEPH WINSON DIAS,

7. THANKAMMA, W/O.LATE AUGUSTINE,

8. GEEMON, S/O. DO., RESIDING IN DO.  DO.

9. GEEVAN, S/O.DO., RESIDING IN  DO. DO.

10. JOSEPH, S/O.DO., RESIDING IN  DO. DO.

11. SAJI, S/O. DO., RESIDING IN DO.  DO.

12. GEEMOL, D/O.DO.  RESIDING IN DO. DO.

13. ELSY, W/O.LATE MATHU ALIAS MATHO,

14. LINSY, D/O.  DO., RESIDING IN DO. DO.

15. MARYKUTTY, D/O. DO., RESIDING IN DO.DO.

16. MARTIN, S/O. DO., RESIDING IN DO. DO.

17. PHILOMINA, D/O.DO, RESIDING IN DO. DO.

18. ROY, S/O. DO., RESIDING IN DO. DO.

19. MARTHA, W/O.LATE FRANCIS,

20. ANTONY ROBERT DIAS,

                For Petitioner  :SRI.K.JAYAKUMAR

                For Respondent  : No Appearance

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

 Dated :02/11/2009

 O R D E R
               S.S.SATHEESACHANDRAN, J.
                  -------------------------------
              W.P.(C).NO.31018 OF 2009 (O)
                -----------------------------------
       Dated this the 2nd day of November, 2009

                      J U D G M E N T

Petitioners are the plaintiffs in O.S.No.1056 of 1990 on

the file of the Munsiff Court, Ernakulam. The above suit is for

fixation of boundary and perpetual prohibitory injunction, and

the respondents are the defendants. Two applications were

moved by the plaintiffs for amending the plaint. Ext.P3

application was moved for amending the plaint to have an

additional relief of recovery of possession alleging that the

defendants have encroached upon certain portions of the

plaint property beyond their kudikidappu. To that application,

the defendants filed Ext.P4 counter affidavit. Another

amendment application was filed by the plaintiffs to carry out

some modifications and alterations with respect to the relief

column in the plaint after deleting some statements made

earlier. Ext.P5 is the copy of that application to which the

defendants filed Ext.P7 counter. The learned Munsiff, after

WPC.31018/09 2

considering both the applications together, under Ext.P8

order, permitted amendment only with respect to some extent

canvassed in I.A.No.3207 of 2009, in paragraph 3A of the

plaint, permitting alteration of the extent of the property and

also the schedule description covered by ‘B’ schedule in the

plaint. The rest of the amendment sought for in that

application and also the amendment covered by the other

application I.A.No.3554 of 2009 were turned down by the

court below. Propriety and correctness of Ext.P8 order passed

by the court below, to the extent the petitioners are aggrieved

thereby is challenged in the writ petition invoking the

supervisory jurisdiction vested with this Court under Article

227 of the Constitution of India.

2. I heard the learned counsel for the petitioners.

Having regard to the submissions made and taking note of the

facts and circumstances presented, I find no notice to the

respondents is necessary, and, hence, it is dispensed with.

There was a reference to the Land Tribunal with respect to the

claim of kudikidappu canvassed by the defendants and the

WPC.31018/09 3

reference has been answered with the finding, according to

the counsel. The order of the Land Tribunal and also the

previous commission report prepared in the case would justify

the claim of amendment now sought for by the plaintiffs, is the

submission of the learned counsel. Perusing Ext.P8 order with

reference to the submissions made by the counsel and also

other exhibits tendered in the writ petition, I find that no

interference with the order passed by the court below is called

for by invoking the visitorial jurisdiction vested with this

Court. Suit has been filed for fixation of boundary to

demarcate the kudikidappu holding of the defendants.

Whatever be the extent of land to which the defendants are

entitled to as kudikidappu in common as inherited from their

predecessor or separately in their individual capacity, through

the intervention of the civil court, even if a finding has been

given by the Land Tribunal in the suit on the question of

kudikidappu on a reference, whether demarcating of

kudikidappu holding fixing its boundaries is permissible, is a

serious question that requires to be taken note of and

considered. Questions including identification of the

WPC.31018/09 4

kudikidappu holding so long as it has not been determined by

the Land Tribunal, is outside the purview of the civil court in

view of the mandatory provisions covered by the Land

Reforms Act. Further more, with respect to the recovery of

possession sought for by the plaintiffs, that too, in a suit filed

nearly two decades ago, other questions as to what are the

contentions raised by the defendants in the written statement

already filed and also their challenges to the suit claim

deserve to be taken note of. I find no interference with

Ext.P8 common order passed by the court below, in the given

facts of the case, is called for. Writ petition lacks merit, and it

is dismissed.

S.S.SATHEESACHANDRAN
JUDGE

prp