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The Kottayam District … vs Saidkutty on 8 June, 2010

Kerala High Court
The Kottayam District … vs Saidkutty on 8 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 17665 of 2010(O)


1. THE KOTTAYAM DISTRICT CO-OERATIVE BANK
                      ...  Petitioner

                        Vs



1. SAIDKUTTY, AGED 55 YEARS,
                       ...       Respondent

                For Petitioner  :SRI.T.R.HARIKUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :08/06/2010

 O R D E R
                   THOMAS P JOSEPH, J.

                  ----------------------------------------

                     W.P.C.No.17665 of 2010

                  ---------------------------------------

                Dated this 08th day of June, 2010

                            JUDGMENT

Plaintiff in O.S.No.726 of 2005 of the court of learned

Munsiff, Kottayam is the petitioner. It filed THE suit for

prohibitory injunction against respondent/defendant altering

boundary between plaint A and B schedule properties, trespassing

into A schedule and committing waste therein. Respondent

resisted the suit and made counter claim against petitioner. On the

request of petitioner an Advocate Commissioner was appointed.

Commissioner submitted report and plan complaining that

Commissioner has not measured the property with reference to the

old survey records petitioner filed I.A.No.3638 of 2007 to remit the

report and plan with direction to the Commissioner to measure the

property on the basis of old survey records. That application was

dismissed by the learned Munsiff which was challenged in this

court in W.P.C.No.22374 of 2008. This court vide judgment dated

27-07-2008 refused to interfere with dismissal of I.A.No.3638 of

2007 but permitted petitioner to raise its contentions in the appeal

from the judgment of trial court if it went against petitioner.

Thereafter, petitioner remained absent and the suit was dismissed.

W.P.C.No.17665 of 2010 : 2 :

Counter claim was decreed in favour of the respondent. Petitioner

challenged that judgment and decree in the court of learned

District Judge in A.S.No.275 of 2008. Learned District Judge as per

judgment dated 12-11-2009 allowed the appeal and remitted the

case to the trial court with liberty to both sides to adduce evidence.

In the light of the observation that parties are given opportunity to

adduce evidence, petitioner filed I.A.No.360 of 2010 to remit the

report and plan of the Advocate Commissioner for fresh

measurement based on old survey records and title deeds of parties

and locate the compound wall. That application was dismissed by

the learned Munsiff vide the impugned order which is under

challenge in this writ petition. Learned counsel for petitioner

contends that this court while disposing of W.P.C.No.22374 of 2008

permitted petitioner to take up its contentions as to correctness of

the report and plan (Exts.C1 and C1(a)) and the appellate court,

setting aside judgment and decree of trial court has given liberty to

petitioner to adduce further evidence and it is as part of that,

petitioner filed I.A.No.360 of 2010. According to the learned

counsel, without measurement of the property based on old survey

records and title deeds real dispute between the parties cannot be

settled.

2. I am afraid that in the light of dismissal of I.A.No.3638

of 2007 which has been confirmed by this court in W.P.C.No.22374

of 2008, petitioner cannot rake up the same issue again, for,

W.P.C.No.17665 of 2010 : 3 :

principles of res judicata applies to different stages of the same

proceeding as held in U.P.State Road Transport Corporation

Vs. State of U.P & Another (AIR 2005 SC 446). Appellate court

while remanding the case has not disturbed the order on

I.A.No.3638 of 2007 or interfer with Exts.C1 and C1(a) and given

opportunity to the parties to get the report remitted. Appellate

court has also not made any comment on the acceptability or

otherwise of that report and plan. Appellate court remanded the

case only because there was no discussion in the judgment on the

counter claim raised by respondent. So much so, order on

I.A.No.3638 of 2007 as confirmed by this court in W.P.C.No.22374

of 2008 has to stand. So far as that order stands it is not open to

the petitioner to file fresh application for the same purpose. So far

as the prayer in I.A.No.360 of 2010 to measure the property with

the title deeds is concerned, no such demand was made either in

the application for commission or in I.A.No.3638 of 2007. Hence at

this belated stage that request cannot be entertained. I make it

clear that as observed in the judgment in W.P.C.No.22374 of 2008

it will be open to the petitioner to challenge correctness of Exts.C1

and C1(a) in the appeal that may be preferred against judgment of

the trial court if at all that goes against it.

With the above observation the writ petition is dismissed.

(THOMAS P JOSEPH, JUDGE)
Sbna/-

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