DAMIYAN LOUIS and ZIRIL MORAIS v SHAJI THOMAS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 17049 of 2010(O) -------------------------OS.359/2009 of I ADDL.MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER(S): --------------- 1. DAMIYAN LOUIS, SACRED HEART HOUSE, AMBALATHIN MOOLA, CHOWARA P.O., KOTTUKKAL DESOM, KOTTUKKAL VILLAGE. 2. ZIRIL MORAIS, ST.JACOB HOUSE, PULLUVILA, PULLUVILA P.O., KARUMKULAM VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.JAWAHAR HAMID RESPONDENT(S): --------------- SHAJI THOMAS, MANJANGAL HOUSE, KAKKANADU LANE, KESAVADASAPURAM, ULLOOR VILLAGE, TRIVANDRUM. ADV. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA SRI.VISWAMBARAN.V.S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010, ALONG WITH WPC NO. 19293 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.17049/2010 ## APPENDIX ## PETITIONERS' EXHIBITS: EXT.P1 A TRUE COPY OF THE PLAINT IN OS NO.359/2009 EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY THE DEFENDANT IN OS 359/2009 EXT.P3 TRUE COPY OF IA NO.4063/2009 EXT.P4 TRUE COPY OF ORDER DATED 9.4.2010 IN OS 359/2009 EXT.P5 TRUE OPY OF B DIARY IN OS 359/2009 EXT.P6 TRUE COPY OF COMMUNICATION D:NO.1023/10 DATED 26.5.2010 OF THE ADDITIONAL MUNSIFF-I EXT.P7 TRUE COPY OF WRITTEN STATEMENT FILED IN OS 136/2010 ## RESPONDENT'S EXHIBITS: EXT.R1(a) TRUE COPY OF THE STATEMENT DATED 22.1.1994 IN OS 1094/1993 SUBMITTED BY ADVOCATE COMMISSIONER EXT.R1(b) TRUE COPY OF JUDGMENT DATED 13.10.2009 IN WP(C) NO.28795/2009 EXT.R1(c) TRUE COPY OF THE REPORT OF COMMISSIONER DATED 10.2.2010 EXT.R1(d) TRUE COPY OF MEMO DATED 14.3.2010 EXT.R1(e) TRUE COPY OF THE REPORT DATED 5.6.2010 EXT.R1(f) TRUE COPY OF JUDGMENT IN WP(C) NO.36391/2009 DATED 16.12.2009 //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------W.P.(C) Nos.17049 & 19293 of 2010 -------------------------------------Dated this the 22[nd ] day of July, 2010.** ## **JUDGMENT** These Writ Petitions concern attempts made by leaned Additional Munsiff-I, Neyyattinkara for identification of the disputed property with assistance of the Advocate Commissioner and Surveyor. O.S.No.359 of 2009 is a suit filed by petitioners in W.P.(C) No.17049 of 2010 seeking a decree for prohibitory injunction to restrain respondents/defendants (who include petitioner in W.P.(C) No.19293 of 2010) from trespassing into, making constructions or annexing any portion of the property described in the plaint schedule. In the plaint schedule, property is described as 2.3758 acres in old survey No.476/2A ( I am told that some correction has been made in the re-survey number by way of amendment) and described as plot Nos.14 and 16 in the plan attached to Udukure award No.506 of Settlement Office, Thiruvananthapuram (that plan and award are marked as Ext.R2(b) in W.P.(C) No.19293 of 2010). It is the case of petitioners in W.P.(C) No.17049 of 2010 that properties including the suit property originally belonged to one Zacharia Berthelomia and on his death those properties devolved on his wife and nine children. The wife got 1/3 share while 2/3 shares went to the children. Wife and seven out of nine children sold their right in the suit property to the petitioners in W.P.(C) No.17049 of 2010 leaving the remaining 2/9 shares out of 2/3 shares to the two children of Zacharia Berthelomia, viz., Annie stanley and Leonard . It is the case of petitioners in **WP(C) Nos.17049 & 19293/2010** 2 W.P.(C) No.17049 of 2010 that the suit property belonged in co-ownership to the said Annie Stanley, Leonard and themselves. At the time of institution of the suit in the vacation court on 11.05.2009 petitioners in W.P.(C) No.17049 of 2010 filed I.A.No.1064 of 2009 for an order of temporary injunction and I.A.No.1065 of 2009 for appointment of an Advocate Commissioner. Accordingly, Advocate T.B.Preetha was appointed as Commissioner. She has submitted a report (Ext.R2(c) in W.P.(C) No.19293 of 2010). In the meantime, one Balakrishnan filed O.S.No.316 of 2005 against petitioners in W.P.(C) No.17049 of 2010 and others and in that case, Advocate S.K.Preeja was appointed as Commissioner. She has submitted a report, according to petitioners in W.P.(C) No.17049 of 2010 properly identifying property described in the plaint schedule in O.S.No.359 of 2009. Petitioner in W.P.(C) No.19293 of 2010 who is a defendant in O.S.No.359 of 2009 has a contention that the suit property in O.S.No.359 of 2009 is not identifiable and that it has not been identified by any of the Advocate Commissioners. Thereafter, petitioners in W.P. (C) No.17049 of 2010 filed application to prosecute petitioner in W.P.(C) No.19293 of 2010 alleging that in violation of the order of injunction passed on I.A.No.1064 of 2009 in O.S.No.359 of 2009 he trespassed into the suit property and constructed structures. It was also requested that Advocate Commissioner may be assisted by a Surveyor to identify the property in the light of contention raised by petitioner in W.P.(C) No.19293 of 2010. Accordingly, learned Munsiff appointed an Advocate Commissioner and a Surveyor. As various reports of that Advocate Commissioner show for some reason or the other he was not **WP(C) Nos.17049 & 19293/2010** 3 able to execute the warrant of commission. Local people are said to have resisted inspection contending that they are not parties to the proceedings and that property belonging to them and where they are residing cannot be measured. It is seen from the records that at one stage learned Munsiff ordered police assistance for execution of commission warrant. But inspite of that, Advocate Commissioner was not able to identify the property. Advocate Commissioner went to the extent of reporting that even (plaintiffs in O.S.No.359 of 2009) petitioners in W.P.(C) No.17049 of 2010 could not point out the property which they claimed to be the suit property in O.S.No.359 of 2009. He reported that now there is a compound wall around the disputed property which was under the lock and key of petitioner in W.P.(C) No.19293 of 2010. Both sides have filed their objection to the reports submitted by Advocate Commissioner. According to the petitioners in W.P.(C) No.17049 of 2010 Advocate Commissioner has not made any serious attempt to identify the property which Advocate S.K.Preeja had identified and instead, he was helping petitioner in W.P.(C) No.19293 of 2010 by reporting that property could not be identified. They also found fault with the Advocate Commissioner for reporting that they had not produced relevant documents for identification. Advocate Commissioner ultimately surrendered warrant of commission. At that stage parties approached this Court with these Writ Petitions. In W.P.(C) No.17049 of 2010 petitioners seek a direction to the court below to direct the Advocate Commissioner to complete identification of property with the assistance of a Surveyor as earlier ordered while in W.P.(C) No.19293 of 2010 relief asked is to **WP(C) Nos.17049 & 19293/2010** 4 direct learned Munsiff to expedite trial and disposal of the suits because he has invested huge amount for development of property which belong to him as per documents of title referred to in the written statement. 2. Prayer in short in W.P.(C) No.17049 of 2010 is for a proper identification of the suit property with reference to the documents of title referred to by petitioners. Learned counsel for petitioner in W.P.(C) No.19293 of 2010 contend that even as per the showing of Advocate Commissioner, petitioners in W.P.(C) No.17049 of 2010 were not able to point out the property which they claimed to be the suit property and hence O.S.No.359 of 2009 being a suit for injunction question of identification of the property by measurement did not arise. Learned counsel has also invited my attention to the averments in the plaint in O.S.No.359 of 2009. Learned counsel for petitioners in W.P.(C) No.17049 of 2010 contends that since in the written statement and in answer to the petition for prosecution petitioner in W.P.(C) No.19293 of 2010 has raised a contention that suit property is not identifiable and that suit property is not the property referred to as plot Nos.14 and 16 of Udukure award No.506 of Settlement Office, Thiruvananthapuram, identification of the property is required. Learned counsel points out that O.S.No.396 of 2009 filed by petitioner in W.P. (C) No.19293 of 2010 for injunction against petitioners in W.P.(C) No.17049 of 2010 has also been transferred to the court of learned Additional Munsiff, Neyyattinkara for joint trial with the other suits. **WP(C) Nos.17049 & 19293/2010** 5 3. So far as O.S.Nos.359 of 2009 and 396 of 2009 are concerned, relief prayed for is injunction based on possession. Though, in certain cases reference to title may be necessary to prove possession claimed by parties the Supreme Court has held in **Anathula Sudhakar v. Buchi Reddy ((2008)** **4 SCC 594)** that in a suit for injunction based on possession if the matter involves complicated questions of fact and law relating to title, parties should be relegated to the remedy of a comprehensive suit for declaration of title. It is not disputed before me by learned counsel on both sides that court fee is paid in the suits under Section 27(c) of the Kerala Court Fees and Suits Valuation Act for relief of injunction based on possession claimed by parties. Hence it appears to me that it is not necessary for the learned Munsiff to go deep into the issue of title of the suit property and what is required is to decide the issue regarding possession. What is relevant is to identify the property in dispute and decide which of the parties is in possession of the same as on the date of suits. In so far as petitioner in W.P.(C) No.19293 of 2010 has raised a contention that property scheduled in O.S.No.359 of 2009 is not the property identified by Advocate Commissioner, S.K.Preeja and petitioners in W.P.(C) No.17049 of 2010 say that she has correctly identified the property involved in O.S.No.359 of 2009, petitioners in W.P.(C) No.17049 of 2010 need only an identification in that way what is required is only to ascertain whether property reported by Advocate S.K.Preeja in her report is the property scheduled in O.S.No.359 of 2009. **WP(C) Nos.17049 & 19293/2010** 6 4. Having heard counsel on both sides I am of the view that what is required is only to do that. It is not necessary for Advocate Commissioner to undertake a serious effort to identify the entire properties as undertaken and could not be carried out. Learned counsel for petitioner in W.P.(C) No.19293 of 2010 has raised a contention that petitioners in W.P.(C) No.17049 of 2010 were not able to identify the property referred to in the plaint schedule in O.S.No.359 of 2009 and that though a preliminary decree (Ext.R2(a) in W.P.(C) No.19293 of 2010) was passed with Annie Stanley and Leonard, children of late Zacharia Berthelomia and about 200 others as parties way back in 2002 petitioners in W.P.(C) No.17049 of 2010 did not or could not even so far apply for passing a final decree since they knew that the property is not identifiable and property described in O.S.No.359 of 2009 is not the property referred to as plot Nos.14 and 16 in the plan appended to Udukure award No.506 of Settlement Office, Thiruvananthapuram. Learned counsel on both sides have read from the preliminary decree which according to them would suite the contention they have raised. What is required to be decided is whether the property said to be located by Advocate Preeja is the property described in the plaint schedule in O.S.No.359 of 2009 and on possession claimed by parties over that property. I make it clear that it will be open to the petitioner in W.P.(C) No.19293 of 2010 to pursue his contention that Advocate Preeja has not properly identified the suit property and that property she located is not the property referred to in plaint schedule in O.S.No.359 of 2009. **WP(C) Nos.17049 & 19293/2010** 7 Resultantly these Writ Petitions are disposed of in the following lines: i. Petitioners in W.P.(C) No.17049 of 2010 (plaintiffs in O.S.N.359 of 2009) will be entitled to identify the suit property with the assistance of Advocate S.K.Preeja. I make it clear that Advocate Commissioner need not undertake a long drawn Process of tracing title as if in a suit on title. Advocate Commissioner need only identify the property scheduled in the plaint in O.S.No.359 of 2009 for the purpose of granting relief prayed for in that suit. ii. In case Advocate S.K.Preeja is not available for any reason whatsoever learned Munsiff shall appoint a senior advocate of that station to execute work as stated above. iii. It will be open to the petitioner in W.P.(C) No.19293 of 2010 to pursue his contention regarding identification of the property that may be made by the Advocate Commissioner and the identification if already made and referred to in any of the reports filed. iv. Learned Munsiff shall issue a warrant of commission in the above lines. **WP(C) Nos.17049 & 19293/2010** 8 v. Learned Munsiff shall make every endeavour to dispose of the suits as early as possible but, after giving opportunity to both sides to raise all objections to the report and plan that may be submitted and also to adduce evidence on the contentious issues bearing in mind the principles laid down by the Supreme Court in Anathula Sudhakar's case. **THOMAS P.JOSEPH, Judge.** **cks**