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.
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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
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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/-