Thomas Alias Raju vs Merlis Jose on 3 March, 2010

Kerala High Court
Thomas Alias Raju vs Merlis Jose on 3 March, 2010




WP(C).No. 27246 of 2009(O)

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SMT.SUMATHY DANDAPANI (SR.)

                For Respondent  :SRI.SUNNY MATHEW

The Hon'ble MR. Justice P.BHAVADASAN

 Dated :03/03/2010

 O R D E R
                     P. BHAVADASAN, J.
                  W.P.(C) No. 27246 of 2009
           Dated this the 5th day of March, 2010


In this writ petition filed under Article 227 of the

Constitution of India the petitioner seeks the following


i) to call for the records leading to the case and
peruse Exhibit P4 and to issue a writ of
certiorari closing the IA 233/09 in O.S.
No.268/08 on the file of the Principal
Munsiff, Kasaragod;

ii) to issue a writ of mandamus or any other
appropriate writ, order or direction,
directing the learned Munsiff, Kasaragod to
call for the remaining missing pages in
respect of SS No.848/63/Perdala in respect
of properties in RS No.1063/1B and 1065/2
of Pardala Village (now Badiadka Village);

iii) to issue a writ of mandamus, or any other
appropriate writ, order or direction,
directing the learned Munsiff, Kasaragod to
admit in evidence the sketches available with
the petitioner in respect of the properties in
RS No.1063/1B and 1065/2 of Perdala
Village (now Badiadka Village), if the District
Collector, Kasaragod and Tahsildar,
Kasaragod fail to produce the remaining
missing of SS No.848/63;

W.P.(C) No. 27246/09 2

iv) to issue such other appropriate writ, order or
direction which this Honouable Court may
deem fit in the circumstances of the case and

v) to award costs of these proceedings.

2. The respondent in this writ petition filed O.S.

No.268 of 2008 before the Munsiff’s Court, Kasaragod

against the petitioner for realization of damages of

Rs.22,800/- and also for a permanent prohibitory injunction

restraining the petitioner from trespassing into the plaint ‘A’

schedule properties. The respondent in the suit claimed

that plaint ‘A’ schedule property is in her possession and

enjoyment. The allegation was that the petitioner herein

trespassed into the plaint schedule property and cut and

removed the trees.

3. The petitioner herein filed written statement with a

counter claim. He pointed out that the plaint schedule

property belongs to him and the allegations made against

him are not correct. He stated that the property belongs to

one M.Sankara Moolya who obtained the same on

assignment under settlement scheme S.S.No.848/63 dated

29-2-1964. He also stated that the petitioner removed a

W.P.(C) No. 27246/09 3

portion of the trench after obtaining an ex parte order of

injunction in the suit.

4. It appears that the petitioner filed I.A. No.No.2039

of 2008 under Rule 120 of the Kerala Civil Rules of Practice,

seeking to issue summons to the District Collector,

Kasaragod to direct the Tahsildar, Kasaragod to produce

the entire files relating to S.S.No.848/63/Perdala in respect

of the assignment proceedings relating to the properties

comprised in R.S. No.1063/1B and 1065/2, measuring 2.90

acres and 1.10 acres respectively situated in Perdala Village

(now Badiadka Village). According to the petitioner,

documents were in the custody of the Tahsildar, Kasaragod.

The application was allowed and direction sought for was

issued to produce the file. The file was produced before the

court. It is found that relevant pages are missing from the

file. Then the Tahsildar was called upon to produce the

missing pages also. He filed an affidavit stating that he

could not trace out the remaining pages. In the light of the

affidavit filed by the Tahsildar, the learned Munsiff closed

the application. That order is under challenge.

W.P.(C) No. 27246/09 4

5. This Court called for a report from the lower court.

The lower court reported that the Tahsildar who appeared

in person before the court initially sought for time to

produce the documents. The case was posted on two

occasions and thereafter the Tahsildar filed an affidavit

stating that documents are missing. Nothing more to be

done in the matter and I.A. was closed.

6. The learned counsel for the petitioner pointed out

that the petitioner is having photocopies of the document.

He is now unable to get the original of the documents.

7. The petitioner has a remedy to produce secondary

evidence, if it is established primary evidence could not be

procured in spite of best effort in that case. The court

below shall consider the documents produced by the

petitioner in support of his case. With liberty to do so, this

petition is dismissed.



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