High Court Kerala High Court

Smt. Rosily vs Padmavathy Amma on 31 July, 2009

Kerala High Court
Smt. Rosily vs Padmavathy Amma on 31 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 21639 of 2009(O)


1. SMT. ROSILY W/O. RAPHEL
                      ...  Petitioner

                        Vs



1. PADMAVATHY AMMA, W/O. LATE SATHYANATHAN
                       ...       Respondent

2. SUNIL S/O. LATE SATHYANATHAN NAIR,

3. LAKSHMI D/O. LATE SATHYANATHAN NAIR

4. THE TALUK SURVEYOR,(JOINT COMMISIONR)

                For Petitioner  :SRI.K.K.JOHN

                For Respondent  : No Appearance

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

 Dated :31/07/2009

 O R D E R
              S.S.SATHEESACHANDRAN, J.
                  -------------------------------
              W.P.(C).NO.21639 OF 2009 (O)
                -----------------------------------
           Dated this the 31st day of July, 2009

                       J U D G M E N T

The writ petition is filed seeking the following reliefs:

i. to call for the records relating to the suit
O.S.No.225/1995 and direct the learned
Munsiff, Paravur to defer the trial of the suit
until a report and plan are submitted by the
commissioner and the Taluk Surveyor
appointed in the case.

ii. to direct an enquiry to be made into the
non availability of the survey records in the
survey department preventing the just
disposal of the suit.

iii. to stay the trial proceedings in the suit
O.S.No.225/1995 of the Munsiff’s Court,
Paravur till the disposal of the writ petition.

iv. to grant such other reliefs as could be
granted in the nature and circumstances of
the case.

2. Petitioner is the plaintiff in O.S.No.225 of 1995 on the

file of the Munsiff’s Court, Paravur. Suit originally was filed

WPC.21639/09 2

for permanent prohibitory injunction, but, later on amended

for declaration of title and recovery of possession. An

Advocate Commission was taken out by the plaintiff to

measure out the suit property with reference to survey

records. The Commissioner has filed a report stating that the

suit property could not be identified with the survey records

available with the surveyor. Certified copies of the sketches of

the sub division relating to the suit property were produced.

The Commissioner was again appointed, and, an interim

report was filed by that Commissioner stating the enquiry

conducted at the village offices disclosed that the sub division

sketches relating to the suit property are not available in the

village offices. Without issuing any further direction to the

Commissioner, the case has been listed for trial on 1.8.2009, is

the grievance canvassed in the petition for the reliefs

aforementioned invoking the supervisory jurisdiction vested

with this Court under Article 227 of the Constitution of India.

3. I heard the learned counsel for the petitioner. I find

no notice to the respondents is necessary in the facts

WPC.21639/09 3

presented, and, hence, it is dispensed with.

4. Suit filed for injunction has been subsequently

amended for declaration of title and recovery of possession.

Recovery of possession of the suit property, as a whole, as

having been subsequently trespassed upon by the

respondents, is sought for in the amended plaint. An interim

report is seen filed by the second Commissioner as seen from

Ext.P3 as early on 1.4.2009. If at all the petitioner had any

case that the identification of the property is possible with the

copies of the sketches produced by the Assistant Director of

Survey, she could have brought it to the notice of the court

and applied for issuing proper directions to the Commissioner.

At the fag end after the suit has been listed for trial, she has

filed this writ petition, that is, two days before the date fixed

for recording of evidence. After going through the copy of

plaint and other materials produced with the writ petition, I

find this is not a fit case where the issue of any direction or

orders to the court below as sought for by the petitioner is

called for. Petitioner has no case that her property is

WPC.21639/09 4

identifiable with the survey records produced by the Assistant

Director of Survey nor with reference to any title deeds.

I find the writ petition lacks merit, and, it is dismissed.

S.S.SATHEESACHANDRAN
JUDGE

prp