IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31018 of 2009(O)
1. WILLIAM DIAS, S/O.LATE R.S.DIAS,
... Petitioner
2. MARY DIAS,
3. RITA CORREYA,
4. HARRIET CORREYA,
5. SAROJA, W/O.LATE SIMON DIAS,
6. SYNDIA DIAS, D/O.DO.,
Vs
1. JOSEPHKUTTY, S/O.PAILY,
... Respondent
2. PAPPACHAN, S/O.DO. IN DO. DO.
3. SABU, S/O.ANTONY PERUMPILLY,
4. SAJU, S/O. DO., RESIDING AT DO.DO.DO.
5. KUNJAN, S/O. DO.,
6. JOSEPH WINSON DIAS,
7. THANKAMMA, W/O.LATE AUGUSTINE,
8. GEEMON, S/O. DO., RESIDING IN DO. DO.
9. GEEVAN, S/O.DO., RESIDING IN DO. DO.
10. JOSEPH, S/O.DO., RESIDING IN DO. DO.
11. SAJI, S/O. DO., RESIDING IN DO. DO.
12. GEEMOL, D/O.DO. RESIDING IN DO. DO.
13. ELSY, W/O.LATE MATHU ALIAS MATHO,
14. LINSY, D/O. DO., RESIDING IN DO. DO.
15. MARYKUTTY, D/O. DO., RESIDING IN DO.DO.
16. MARTIN, S/O. DO., RESIDING IN DO. DO.
17. PHILOMINA, D/O.DO, RESIDING IN DO. DO.
18. ROY, S/O. DO., RESIDING IN DO. DO.
19. MARTHA, W/O.LATE FRANCIS,
20. ANTONY ROBERT DIAS,
For Petitioner :SRI.K.JAYAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :02/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.31018 OF 2009 (O)
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Dated this the 2nd day of November, 2009
J U D G M E N T
Petitioners are the plaintiffs in O.S.No.1056 of 1990 on
the file of the Munsiff Court, Ernakulam. The above suit is for
fixation of boundary and perpetual prohibitory injunction, and
the respondents are the defendants. Two applications were
moved by the plaintiffs for amending the plaint. Ext.P3
application was moved for amending the plaint to have an
additional relief of recovery of possession alleging that the
defendants have encroached upon certain portions of the
plaint property beyond their kudikidappu. To that application,
the defendants filed Ext.P4 counter affidavit. Another
amendment application was filed by the plaintiffs to carry out
some modifications and alterations with respect to the relief
column in the plaint after deleting some statements made
earlier. Ext.P5 is the copy of that application to which the
defendants filed Ext.P7 counter. The learned Munsiff, after
WPC.31018/09 2
considering both the applications together, under Ext.P8
order, permitted amendment only with respect to some extent
canvassed in I.A.No.3207 of 2009, in paragraph 3A of the
plaint, permitting alteration of the extent of the property and
also the schedule description covered by ‘B’ schedule in the
plaint. The rest of the amendment sought for in that
application and also the amendment covered by the other
application I.A.No.3554 of 2009 were turned down by the
court below. Propriety and correctness of Ext.P8 order passed
by the court below, to the extent the petitioners are aggrieved
thereby is challenged in the writ petition invoking the
supervisory jurisdiction vested with this Court under Article
227 of the Constitution of India.
2. I heard the learned counsel for the petitioners.
Having regard to the submissions made and taking note of the
facts and circumstances presented, I find no notice to the
respondents is necessary, and, hence, it is dispensed with.
There was a reference to the Land Tribunal with respect to the
claim of kudikidappu canvassed by the defendants and the
WPC.31018/09 3
reference has been answered with the finding, according to
the counsel. The order of the Land Tribunal and also the
previous commission report prepared in the case would justify
the claim of amendment now sought for by the plaintiffs, is the
submission of the learned counsel. Perusing Ext.P8 order with
reference to the submissions made by the counsel and also
other exhibits tendered in the writ petition, I find that no
interference with the order passed by the court below is called
for by invoking the visitorial jurisdiction vested with this
Court. Suit has been filed for fixation of boundary to
demarcate the kudikidappu holding of the defendants.
Whatever be the extent of land to which the defendants are
entitled to as kudikidappu in common as inherited from their
predecessor or separately in their individual capacity, through
the intervention of the civil court, even if a finding has been
given by the Land Tribunal in the suit on the question of
kudikidappu on a reference, whether demarcating of
kudikidappu holding fixing its boundaries is permissible, is a
serious question that requires to be taken note of and
considered. Questions including identification of the
WPC.31018/09 4
kudikidappu holding so long as it has not been determined by
the Land Tribunal, is outside the purview of the civil court in
view of the mandatory provisions covered by the Land
Reforms Act. Further more, with respect to the recovery of
possession sought for by the plaintiffs, that too, in a suit filed
nearly two decades ago, other questions as to what are the
contentions raised by the defendants in the written statement
already filed and also their challenges to the suit claim
deserve to be taken note of. I find no interference with
Ext.P8 common order passed by the court below, in the given
facts of the case, is called for. Writ petition lacks merit, and it
is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp