IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31222 of 2009(O)
1. RAMSH,AGED 39 YEARS,
... Petitioner
2. ANILAN,S/O.PUSHPAKARAN,
Vs
1. PRABHAKARAN,
... Respondent
2. SWARNAM @ SWARNAKUMARI AMMA,
For Petitioner :SRI.RENJITH THAMPAN
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :30/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.31222 OF 2009
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Dated this the 30th day of November 2009
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JUDGMENT
Petitioners are the plaintiffs in O.S No.1701 of
2007 on the file of the Principal Munsiff Court, Irinjalakkuda.
Suit is for declaration, fixation of boundary and injunction,
both prohibitory and mandatory. Suit was laid to restrain
the defendant from encroaching upon ‘B’ schedule property
which is stated to be a road vested with the panchayat. ‘A’
schedule is described as the property belonging to the
defendant. As social workers, the plaintiff and others have
planted some saplings beside the ‘B’ schedule panchayat
road over which, according to the plaintiffs, the defendants
have absolutely no right. Apprehending threat of trespass
over ‘B’ schedule road, plaintiffs, two in number, petitioners
herein, moved the above suit for injunction. The defendants
resisted the suit claim by filing a written statement.
Petitioners/plaintiffs moved an application for appointment
of an advocate commissioner to identify the ‘B’ schedule
pathway after fixing the southern boundary of ‘A’ schedule
W.P.(C).No.31222 OF 2009 Page numbers
property belonging to the defendant with the assistance of
a surveyor, which was objected to by the defendants. After
hearing both sides, the court below dismissed that
application vide Ext.P4 order holding that necessary
particulars for identification of the ‘B’ schedule pathway are
not spelt out in the description of that property in the plaint.
Impeaching the propriety and correctness of Ext.P4 order,
the writ petition is filed invoking the supervisory jurisdiction
vested with this court under Article 227 of the Constitution
of India.
2. I heard the counsel on both sides. From the
submissions made and perusing the ‘B’ schedule description
it appears that necessary particulars are not made out in the
plaint for a proper identification of ‘B’ schedule and also in
fixing the southern boundary of ‘A’ schedule property.
Ext.P4 also reveal that another suit filed by the defendants
as O.S No.268/2006 wherein the panchayat is made a
defendant in which identical questions arise for adjudication
is pending before the court. Panchayat has not been made a
party in the present suit by the petitioners/plaintiffs is
W.P.(C).No.31222 OF 2009 Page numbers
another reason which prompted the court to dismiss the
commission application. Considering the submissions made
and the facts and circumstances presented, it appears that a
joint trial of both the suits may be feasible. But I leave it to
the court below to consider, after going through the
pleadings in both the cases, whether such trial is essential,
and needless to point out any decision for having a joint trial
shall be ordered only after hearing the parties in both suits.
Learned counsel appearing on both sides submit that joint
trial of the two suits is feasible and more practicable. In case
a joint trial of the two suits is ordered, the plaintiffs in the
present case may move for a fresh commission for
determination of the southern boundary of the ‘A’ schedule
with ‘B’ schedule pathway. Ext.P4 order passed by the court
will not stand in the way of the court if any such commission
application is moved by the plaintiffs again and its disposal
in accordance with law. Subject to the above observations,
the writ petition is closed.
Sd/- S.S.SATHEESACHANDRAN,
//TRUE COPY// JUDGE
vdv P.A TO JUDGE