IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30350 of 2008(K)
1. MATHAI IDICULA, MANJAPPALLIL HOUSE,
... Petitioner
2. THANKAMANI MATHAI, DO. DO.
3. STEPHEN MATHAI, DO. DO.
Vs
1. MARIYAMMA VARGHESE,
... Respondent
2. BABYKUTTY VARGHESE, DO. DO.
For Petitioner :SRI.B.KRISHNA MANI
For Respondent :SRI.PRAVEEN K. JOY
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :16/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.30350 of 2008 - K
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Dated this the 16th day of September, 2009
J U D G M E N T
Writ petition is filed seeking the following reliefs:
“i) To call for the records leading to Ext.P10 and
quash the same by a writ of certiorari or any other
appropriate writ, direction or order.
ii) To issue a writ of prohibition restraining the
Munsiff Court, Punalur from granting the prayer in
Ext.P8.
iii) To stay all further proceedings in O.S.No.82 of
2005 before the Munsiff Court, Punalur until the
disposal of the writ petition.”
2. Petitioners are the defendants in O.S.No.82 of 2005 on
the file of the Munsiff Court, Punalur. Suit is one for fixation of
boundary and the respondents are the plaintiffs.
Petitioners/plaintiffs applied for an advocate commissioner to
measure out the property with reference to survey records. That
application was objected to by the petitioners/defendants in the
suit. Learned Munsiff after hearing both sides allowed the
commission application vide Ext.P10 order. Propriety and
correctness of Ext.P10 order is challenged in this writ petition
W.P.(C).No.30350 of 2008 – K
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invoking the supervisory jurisdiction vested with this Court under
Article 227 of the Constitution of India.
3. I heard the counsel on both sides.
4. Learned counsel for the petitioner submitted that
previously the respondents/plaintiffs had filed another suit as
O.S.No.198 of 2005 against survey authorities in which the first
petitioner herein was the additional third defendant, seeking a
decree of mandatory injunction directing the survey authorities to
measure out the properties as per a deed produced by the
plaintiffs. That suit was dismissed by Ext.P3 judgment. In
Ext.P3 judgment, the learned counsel submits, a finding has been
entered into that the third respondent, the present first petitioner
has perfected his title by adverse possession over the property.
That being the case, it is submitted, the present application for
appointment of a commission at the instance of the plaintiff to
measure out the property with reference to survey records should
have been rejected by the court below. On the other hand, the
learned counsel for the respondents/plaintiffs submits that the
previous suit was one for injunction and the dismissal of that suit
will not way affect the right of the plaintiff to prosecute the
W.P.(C).No.30350 of 2008 – K
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present suit seeking the relief of fixation of boundaries over the
plaint property. Ext.p1 is the copy of the plaint in the present
suit. Ext.p2 is the written statement filed in the suit by the first
defendant. Perusing Ext.P2 written statement I find that the
defendant has set up a counter claim the suit. It is seen, by the
counter claim raised the first defendant sought for a decree
declaring that he has perfected title over the property by adverse
possession. Admittedly, issues have not been settled in the suit.
The question emerging for consideration is whether in view of the
dismissal of the previous suit, prosecution of the present suit is
barred by res judicata or under any other provisions of law. on
the facts presented, prima facie, it appears, whatever be the
objections to the maintainability of the suit even if any issue is
raised thereof it cannot be decided without taking evidence. So
much so, a disposal of the suit on a preliminary issue without
taking evidence as contemplated under Order XIV Rule 2 is not
possible. Then the question, what will be the effect of the
observations made in Ext.P3 judgment rendered in the previous
suit. Identity of the property in both the suits is not under
dispute. But in a suit for injunction, possession is the main
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criteria to be determined. Perusing Ext.P3 judgment, I find that
no issue has been raised with reference to the observations made
by the learned Munsiff that the defendant had perfected his title
by adverse possession. So the title question was not an issue in
the suit. Such being the position, it is futile to contend that in
view of the observations made in Ext.P3 judgment rendered in
previous suit a commission cannot be taken in the present suit.
If at all the defendant has got a case that the suit is barred by
res judicata or under any other provisions of law he has to invite
the attention of the court to frame issues thereof and decide that
question. I find no impropriety or illegality in Ext.P10 order
passed by the court below for measuring out the property with
reference to survey records. i make it clear that none of the
observations made by this Court in the judgment will have any
reflection or bearing in the disposal of the suit on its merits.
Writ petition is closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-