Sudha Devo & Badusha v. District Legal Services Authority, K. Chandrika, P. Prabhakaran, U. Jayakumaran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932** ## **WP(C).NO. 18557 OF 2009(L)** **-----------------------------------------** **E.P. NO.149 OF 2008 IN P.L. CASE NO.2455 OF 2009, LOK ADALATH, THIRUVANANTHAPURAM** ## **PETITIONER(S):** **-----------------------** **SUDHA DEVO, T.C.5/2280,PANAYIL VEEDU, KOWDIAR P.O. THIRUVANANTHAPURAM.** **BY ADV. SRI.L.MOHANAN** ## **RESPONDENT(S):** **-----------------------** **1. DISTRICT LEGAL SERVICE AUTHORITY, REPRESENTED BY ITS SECRETARY.** **2. K.CHANDRIKA, T.C.5/2282(1) NEAR GOLF CLUB, DEVI NAGAR, KOWDIAR P.O. THIRUVANANTHAPURAM.** ## **3. P.PRABHAKARAN,** ## **4. U.JAYAKUMARAN NAIR, T.C.5/2282 (5)** **GOVERNMENT PLEADER FOR R1 SRI.AYYAPPAN SANKAR FOR R2 & R3** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2010 ALONG WITH W.P(C) NO.36850 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **---------------** ## **(W.P(C) NO.18557 OF 2009)** ## **PETITIONER'S EXHIBITS: ----------------------------------** **EXHIBIT P1 A ROUGH SKETCH SHOWING THE LOCATION OF THE PETITIONER'S PROPERTY. EXHIBIT P2 COPY OF THE COMPLAINT ALONG WITH THE NOTICE RECEIVED BY THE PETITIONER. EXHIBIT P3 COPY OF THE COMMISSION REPORT. EXHIBIT P4 COPY OF THE AWARD DATED 29.3.208. EXHIBIT P5 COPY OF E.P. EXHIBIT P6 COPY OF E.A. NO.512 OF 2008. EXHIBIT P7 COPY OF ORDER ON 03.10.2008. EXHIBIT P8 COPY OF THE REPORT OF AMIN DATED 20.10.2008.** **RESPONDENT'S EXHIBITS: ----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.18557 of 2009 and W.P(C) No.36850 of 2008 ==================================== Dated this the 29[th] day of July, 2010** ## **J U D G M E N T** These Writ Petitions are of the offshoot of proceedings taken by the Additional Munsiff Court-IV, Thiruvananthapuram in E.P. No.149 of 2008 in PL. Case No.2455 of 2007 of the Lok Adalath under the District Legal Services Authority (for short, “the Authority”) Thiruvananthapuram. Petitioner in W.P(C) No.18557 of 2009 is the owner in possession of six cents in Sy.No.252 of Kowdiar Village as per a partition deed of the year 1979. She constructed a building in the said property and is residing therein. That property is plot No.3 from the road on the eastern side. It is the case of petitioner that there is a pathway from the road on eastern side for access to her property along plot Nos.1 and 2 (on the east of her property) and as granted in the partition deed. Respondent Nos.2 to 4 in W.P(C) No.18557 of 2009 are owners of plots on the south of property of the petitioner. While so, respondent Nos.2 and 3 filed complaint against petitioner before the Authority claiming that they are entitled to right of access ## **W.P(C)No.18557 of 2009 & W.P(C)No.36850 of 2008** -: 2 :- through property of petitioner and which she obstructed. The Authority forwarded that complaint to the Lok Adalath for consideration. From the Lok Adalath petitioner was served with Ext.P2, copy of complaint and notice. She appeared before the Lok Adalath on 12.01.2008 and disputed claim of respondent Nos.2 and 3. Lok Adalath on its turn appointed an Advocate Commissioner to submit a report regarding the disputed matters. Advocate Commissioner according to the petitioner submitted a report stating that there is no such pathway (Ext.P3 is the copy of that report) as claimed by respondent Nos.2 and 3 through property of petitioner. At that stage respondent Nos.2 and 3 removed petitioner from the array of parties in Ext.P2, complaint and instead certain other petitioners including respondent No.4 were brought in. That was followed by a compromise between the said persons and which resulted in the Lok Adalath passing Ext.P4, award. Exhibit P4, award was sought to be executed in the court of learned principal Munsiff-IV Thiruvananthapuram by filing Ext.P5, E.P. No.149 of 2008. Respondent Nos.2 to 4 filed E.A.No.512 of 2008 (Ext.P6) in that proceeding to depute an Amin to set out the way. There was nobody to oppose the ## **W.P(C)No.18557 of 2009 & W.P(C)No.36850 of 2008** -: 3 :- application and hence learned Munsiff passed Ext.P7 order allowing that application. The Amin along with police party came to the scene and attempted to set out a way through property of petitioner (as she complaints) cutting down valuable improvements in the said property. On petitioner objecting that, Amin submitted Ext.P8, report before the learned Munsiff stating that further police assistance is required. It is at this stage that petitioner has approached this court with this Writ Petition to quash Exts.P4 and P5. 2. W.P(C) No.36850 of 2008 is filed by one Badusha. He owns property on the immediate south of property of petitioner in W.P(C) No.18557 of 2009 (as revealed from Ext.P1, sketch in W.P(C) No.18557 of 2009). He filed O.S. No.902 of 2008 in the court of learned Additional Munsiff-IV Thiruvananthapuram for injunction against setting out any pathway through his property. He also filed claim petition (E.A.No.907 of 2008) in E.P. No.149 of 2008 of the court of learned Principal Munsiff, Thiruvananthapuram stating that he is not a party to the compromise petition or award passed by the ## **W.P(C)No.18557 of 2009 & W.P(C)No.36850 of 2008** -: 4 :- Lok Adalath and that there is no way or could be set out through his property. He filed W.P(C) No.36850 of 2008 with a prayer that learned Principal Munsiff, Thiruvananthapuram be directed not to proceed with E.P. No.149 of 2008 until right of parties is established in O.S No.902 of 2008 filed by him. 3. Learned counsel for petitioner in W.P(C) No.18557 of 2009 contended that in so far as petitioner is not a party to the compromise (so called) and award (Ext.P4) that followed, no way could be set out through her property whatever be understanding between the other parties to Ext.P4, award. It is also contended by learned counsel that in so far as petitioner had appeared before the Lok Adalath on 12.01.2008 and disputed claim of respondent Nos.2 and 3, the Lok Adalath could not have determined the issue so far as petitioner did not agree for settlement or conciliation. Learned counsel has invited my attention to Section 19(5) of the Legal Services Authority Act, 1987 (for short,”the Act”). Reliance is also made on the decisions in **State of Punjab v. Jalour Singh** (2008 [2] KLT 236) and **Moideen Sevamandir v. Kutty Hassan** ## **W.P(C)No.18557 of 2009 & W.P(C)No.36850 of 2008** -: 5 :- (2009 [1] KLT 235). According to the learned counsel on the strength of Ext.P4, award there could be no execution against petitioner or in respect of the property belonging to her. Petitioner in W.P(C) No.36850 of 2008 while supporting contention of learned counsel for petitioner in W.P(C) No.18557 of 2009 supplemented her argument by stating that in so fas as petitioner in W.P(C) No.36850 of 2008 has filed Ext.P5, claim petition in E.P. No.149 of 2008 and that claim petition is not disposed of there could be no execution against him or affecting his properties. Learned counsel for respondent Nos.2 to 4 in W.P (C) No.18557 of 2009 contends that it is not necessary to set aside Exts.P4 and P5 (in W.P(C) No.18557 of 2009) as requested by the petitioner therein and that respondent Nos.2 to 4 do not want to proceed against petitioner or the property belonging to her. In so far as W.P(C) No.36850 is concerned it is argued by learned counsel for respondents Nos.1 to 3 that O.S. No. 902 of 2008 was dismissed immediately on reopening of the courts after summer vacation and, it has not so far been restored to file. Learned counsel however agrees that claim petition is pending consideration of learned Munsiff in E.P. No.149 of 2008 and **W.P(C)No.18557 of 2009 & W.P(C)No.36850 of 2008** -: 6 :- hence the execution proceedings can be continued after that clam petition is disposed of. 4. It is not disputed that petitioners herein are not parties to the compromise before Lok Adalath and Ext.P4 (in W.P (C) No.18557 of 2009) award. It follows that in so far as petitioners are not parties to that award it cannot bind them. Learned counsel for petitioners are also justified in their contention that except by way of settlement or conciliation the Lok Adalath could not have determined the dispute as Sec.19(5) of the Act and the Supreme Court has in decisions quoted supra made it clear. To be more exact in **State of Punjab v. Jalour Singh** (supra) it is held that Lok Adalath has no adjudicatory or judicial function and that their function related purely to conciliation. It follows that comprise and consequent award cannot in any way affect petitioners in these Writ Petitions. In that view of the mater there is no reason why Exts.P4 and P5 in W.P(C) No.18557 of 2009 should be set aside. What is required is only to make it clear and record the submissions made by learned counsel for respondent Nos.2 to 4 that the compromise **W.P(C)No.18557 of 2009 & W.P(C)No.36850 of 2008** -: 7 :- and consequent award of Lok Adalath (Ext.P4 in W.P(C) No.18557 of 2009) would not bind petitioners in these Writ Petitions and also to record statement of learned counsel appearing respondent Nos.2 to 4 in W.P(c) No.18557 of 2009 that they do not intend to proceed against the property of petitioner in W.P (C) No.18557 of 2009. So far as petitioner in W.P(C) No.36850 of 2008 is concerned since he also is not a party to the compromise and Ext.P4, award in W.P(C) No.18557 of 2009 the decisions of the Supreme Court referred to above are squarely applicable to his claim as well. Added to that there is the claim petition filed by him in E.P. No.149 of 2008 pending consideration of learned Principal Munsiff, Thiruvananthapuram. Learned Munsiff has to dispose of that claim petition as provided under law. So far as the claim of petitioner in W.P(C) No.36850 of 2008 is concerned, respondent Nos.1 to 3 therein have a contention that the pathway over which they claimed right does not pass through the property of petitioner therein and that it is a pathway recited in the title deeds of the predecessor-in-interest of the parties. I make it clear that it is a matter which the learned Munsiff has to decide while considering the claim preferred by the petitioner in E.P. ## **W.P(C)No.18557 of 2009 & W.P(C)No.36850 of 2008** -: 8 :- No.149 of 2008. Resultantly, these Writ Petitions are disposed of in the following lines: ## 1. W.P(C) No.18557 of 2009 While refusing the prayer to set aside Exts.P4 and P5 it is made clear that the compromise and Ext.P4 award passed by the Lok Adalath shall not in any affect the petitioner or the property belonging to her. ## 2. W.P(C ) No.36850 of 2008 (a) t is made clear that the comprise and the consequent award (Ext.P4 in W.P(C) No.18557 of 2009) do not bind petitioner herein or his property in so far as petitioner was not a party to the comprise or consequent award of the Lok Adalath. (b) question whether pathway claimed by respondent Nos.1 to 3 is outside the property belonging to the petitioner is a matter which ## **W.P(C)No.18557 of 2009 &** ## **W.P(C)No.36850 of 2008** -: 9 :- learned Munsiff shall decide while considering claim petition preferred by the petitioner in E.P.No.149 of 2008. It is however made clear that respondent Nos.1 to 3 shall not have any claim to proceed against property of petitioner on the strength of compromise or consequent award of the Lok Adalath. ## **THOMAS P. JOSEPH, JUDGE.** vsv