IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1189 of 2010()
1. SEERE VALAPPIL SAINABA UMMA
... Petitioner
Vs
1. N.T.KUNHIRAMAN AND ANOTHER
... Respondent
For Petitioner :SRI.M.SASINDRAN
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :13/07/2010
O R D E R
J.Chelameswar, CJ. & P.N.Ravindran, J.
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W.A.No. 1189 OF 2010
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Dated this the 13th day of July, 2010
JUDGMENT
J.Chelameswar, CJ.
The appellant herein is the first respondent in the review
petition, R.P. No.608 of 2005, in W.P.(C) No.29926 of 2004.
The review petition was disposed by an order dated
07.06.2004 by a learned Judge of this Court. The background
in which the above review petition came to be filed is as
follows:
2. The appellant claims that she is the owner and
possessor of an extent of 3 Acres of property. According to the
appellant, she had been paying revenue assessment on the
abovementioned 3 Acres of property to the State of Kerala for
a long period. Complaining that when the appellant and her
two daughters approached the revenue authorities for the
payment of revenue assessment for the abovementioned 3
Acres of land some time in the year 2000, the revenue
authorities declined to accept the same in so far as an extent
of 70 cents of the abovementioned 3 Acres is concerned, on
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the ground that on a re-survey the abovementioned 70 cents was
found belonging to the review petitioner mentioned above.
Therefore, the appellant filed Ext.P6, styled as a representation,
before the Survey Superintendent of Payyannur on 10.10.2000
seeking various reliefs as follows:
“1. Conduct inspection in the property and re-do the re-
survey sub division based on the documents, possession,
boundaries and Village records.
2. Include the entire 3 acres of property possessed by us
and our predecessors based on the documents mentioned in this
petition, in re-survey 14 and thereby rectify the mistake occurred
in the re-survey.
3. Opportunity to adduce and oral and documentary
evidences may be given if your good self feels so.”
3. Thereafter the appellant along with her two daughters
instituted OS No.76 of 2000 on the file of the Munsiff of
Payyannur against the review petitioner mentioned above,
seeking a permanent prohibitory injunction restraining the
defendant from trespassing into plaint E and F schedule
properties etc. From the pleadings it appears that the suit was
dismissed for default by an order dated 15.12.2003. Thereafter
the appellant herein approached this Court by way of W.P.(C)
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No.29926 of 2004 with various prayers, the substance of which
is to command the respondent, i.e., the Superintendent of
Survey, Payyannur to rectify the defects in re-survey of the
property belonging to the appellant herein and her daughters.
4. The said writ petition came to be disposed of by an order
of this Court dated 27.05.2005. The relevant portion of the order
reads as follows:
“I heard the learned Government Pleader also. Having
regard to the facts of the case, the respondent is directed to
consider and pass orders on Ext.P6 in accordance with law within
three months from the date of receipt of a copy of this judgment.
It is made clear that I have not expressed any opinion on the
merits or the maintainability of Ext.P6.”
5. It is to be noted that the abovementioned review
petitioner was not made a party to the writ petition, though he
was the sole defendant in the suit referred to earlier, filed by the
appellant. Therefore, the abovementioned review petition came
to be filed. By the order under appeal dated 07.06.2010 a
learned Judge of this Court allowed the Review Petition and
dismissed the writ petition on the ground that there is
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suppression of material facts and non-joinder of the necessary
party, i.e., the review petitioner. The relevant portion of the
order under appeal reads as follows:
“In view of the fact that the petitioner in the writ petition
has deliberately suppressed material facts and deliberately did
not implead the petitioner in the review petition who was a
necessary party to the writ petition, the writ petition would stand
dismissed on that ground.”
Hence the instant appeal.
6. The entire litigation, in our view, revolves round the
disputed question of title and possession of immovable property.
The appellant instead of initiating appropriate proceedings before
the competent civil court for establishment of her rights,
approached this Court by way of writ petition. It is pointed out
by the learned Judge in the judgment under appeal that the
appellant is guilty of suppression of material facts and the writ
petition is bad from non-joinder of necessary parties. However,
we do not propose to make any further comment in this matter.
We do not see any reason to interfere with the judgment under
appeal except to the extent of reducing the cost awarded, to
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Rs.2,000/-. We also make it clear that it will be open to the
appellant to approach the competent civil court for establishment
of her rights, in accordance with law.
The Writ Appeal is disposed of at the admission stage.
J.Chelameswar,
Chief Justice.
P.N.Ravindran,
Judge.
ttb