Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 24TH DAY OF JANUARY 2022 / 4TH MAGHA, 1943 PETITIONERS: 1 PRAVEEN AGED 55 YEARS S/O. RAHUL, STORE MANAGER, NADE VADAKKETHIL ASWATHI NIVAS, MULLACKAL VILLAGE, MULLACKAL, AMBALAPPUZHA, ALAPPUZHA - 688013. 2 SINDHU AGED 50 YEARS W/O. PRAVEEN, NADE VADAKKETHIL ASWATHI NIVAS, MULLACKAL VILLAGE, MULLACKAL, AMBALAPPUZHA, ALAPPUZHA - 688013. BY ADV V.VIJITHA RESPONDENTS: 1 TAHSILDAR AMBALAPUZHA TALUK OFFICE, ALAPPUZHA - 688 001. 2 TALUK SURVEYOR AMBALAPPUZHA TALUK OFFICE, ALAPPUZHA - 688001. 3 KIDANGAMPARAMBU KSHETHRA YOGAM KIDANGAMPARAMBU WARD, MULLACKAL VILLAGE, MULLACKAL, AMBALAPPUZHA, ALAPPUZHA - 688013, REPRESENTED BY ITS PRESIDENT. BY ADV.AZAD BABU R OTHER PRESENT: SMT. K.AMMINIKUTTY - SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioners say that even though Ext.P1 suit has been instituted against them by the 3rd respondent - Yogam, they appear to have approached the Taluk Surveyor for survey of the properties involved in this case, and which is the subject matter of the said suit, without obtaining any orders from the civil court, leading to Ext.P5 notice being issued to them.
2. The petitioners allege that Ext.P5 is egregiously improper
because the property in question is part of the plaint schedule in Ext.P1 and consequently, that without orders of the competent Civil Court, no measurement of the same can be done, particularly when, what has been sought for in the said suit, is a decree of mandatory injunction against them to remove certain structures therefrom.
3. The afore submissions of Smt.Vijitha V, learned counsel for
the petitioners, were answered by Sri.Azad Babu, learned Standing Counsel for the 3rd respondent, affirming that Ext.P1 suit is pending; but arguing that the survey, which his client has sought for, is not merely with respect to the property of the petitioners, but also that of various other persons, who are the neighbours of the extents owned by his client. He prayed that, therefore, the action pursuant to Ext.P5 be allowed to be continued, asserting that this will not cause any prejudice to the petitioners.
4. Even when I hear Sri.Azad Babu on the afore lines, it is
indubitable that when the property in question is the subject matter of the suit, namely O.S.No.613/2021 on the files of the Munsiff's Court, Alappuzha, it is only in the fairness of things that the 3 rd respondent ought to have sought formal permission from the said Court to conduct a survey of the said property.
5. Therefore, even if the 3rd respondent has sought for survey
of a larger extent, the proceedings with respect to the properties of the petitioners cannot be allowed, unless the said respondent obtains necessary orders from the competent Civil Court.
Resultantly, I order this writ petition to the limited extent of directing that action pursuant to Ext.P5 shall not be taken on the properties of the petitioners, except after the 3rd respondent obtains necessary orders from the competent Civil Court before which O.S.No.613/2021 is pending. To paraphrase, if the 3rd respondent is able to obtain necessary orders for such purpose from the Civil Court, then further action on
Ext.P5 can be continued with respect to the properties involved in this case also; however, subject to the further orders and directions of the said Court.
Sd/- DEVAN RAMACHANDRAN JUDGE rp APPENDIX OF WP(C) 29571/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE OS NO.613/2021 BEFORE THE HON'BLE PRINCIPAL MUNSIFF COURT, ALAPPUZHA. Exhibit P2 TRUE COPY OF THE I.A.NO.4/2021 IN OS NO.613/2021 FILED BEFORE THE HON'BLE PRINCIPAL MUNSIFF COURT, ALAPPUZHA. Exhibit P3 TRUE COPY OF THE ORDER DATED 21.10.2021 IN I.A.NO.4/2021 IN OS NO.613/2021. Exhibit P4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN I.A.NO.4/2021 IN OS NO.613/2021 OF THE HON'BLE PRINCIPAL MUNSIFF COURT, ALAPPUZHA. Exhibit P5 TRUE COPY OF THE FORM NO.12 NOTICE DATED 13.12.2021 OF THE 2ND RESPONDENT.