IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WA.No. 1189 of 2010 --------------------- AGAINST THE JUDGEMENT IN R.P. No.608 of 2005 IN WPC.29926/2004 Dated 07/06/2010 .................... APPELLANT/1ST RESPONDENT: --------------------------------- SEERE VALAPPIL SAINABA UMMA, AGED 54 YEARS, D/O.KUNHAMMED, KUTTOOR, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENTS/PETITIONER & 2ND RESPONDENT: ------------------------------------------------------ 1. N.T. KUNHIRAMAN, S/O.KUNHAMBU, AGED 64 YEARS, NAMBIDI THIDIL HOUSE, MATHAMANGALAM DESOM, ERAMAM AMSOM, KANNUR DISTRICT. 2. SUPERINTENDENT OF SURVEY, PAYYANNUR, KANNUR DISTRICT. R1 BY ADV. SRI. O.P. MANI PRASAD. R2 BY SENIOR GOVT. PLEADER, SRI. BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, CJ. & P.N.Ravindran, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1189 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2010 JUDGMENT J.Chelameswar, CJ. The appellant herein is the first respondent in the review petition, R.P. No.608 of 2005, in W.P.(C) No.29926 of 2004. The review petition was disposed by an order dated 07.06.2004 by a learned Judge of this Court. The background in which the above review petition came to be filed is as follows: 2. The appellant claims that she is the owner and possessor of an extent of 3 Acres of property. According to the appellant, she had been paying revenue assessment on the abovementioned 3 Acres of property to the State of Kerala for a long period. Complaining that when the appellant and her two daughters approached the revenue authorities for the payment of revenue assessment for the abovementioned 3 Acres of land some time in the year 2000, the revenue authorities declined to accept the same in so far as an extent of 70 cents of the abovementioned 3 Acres is concerned, on WA No. 1189 of 2010 -:2:- the ground that on a re-survey the abovementioned 70 cents was found belonging to the review petitioner mentioned above. Therefore, the appellant filed Ext.P6, styled as a representation, before the Survey Superintendent of Payyannur on 10.10.2000 seeking various reliefs as follows: “1. Conduct inspection in the property and re-do the re- survey sub division based on the documents, possession, boundaries and Village records. 2. Include the entire 3 acres of property possessed by us and our predecessors based on the documents mentioned in this petition, in re-survey 14 and thereby rectify the mistake occurred in the re-survey. 3. Opportunity to adduce and oral and documentary evidences may be given if your good self feels so.” 3. Thereafter the appellant along with her two daughters instituted OS No.76 of 2000 on the file of the Munsiff of Payyannur against the review petitioner mentioned above, seeking a permanent prohibitory injunction restraining the defendant from trespassing into plaint E and F schedule properties etc. From the pleadings it appears that the suit was dismissed for default by an order dated 15.12.2003. Thereafter the appellant herein approached this Court by way of W.P.(C) WA No. 1189 of 2010 -:3:- No.29926 of 2004 with various prayers, the substance of which is to command the respondent, i.e., the Superintendent of Survey, Payyannur to rectify the defects in re-survey of the property belonging to the appellant herein and her daughters. 4. The said writ petition came to be disposed of by an order of this Court dated 27.05.2005. The relevant portion of the order reads as follows: “I heard the learned Government Pleader also. Having regard to the facts of the case, the respondent is directed to consider and pass orders on Ext.P6 in accordance with law within three months from the date of receipt of a copy of this judgment. It is made clear that I have not expressed any opinion on the merits or the maintainability of Ext.P6.” 5. It is to be noted that the abovementioned review petitioner was not made a party to the writ petition, though he was the sole defendant in the suit referred to earlier, filed by the appellant. Therefore, the abovementioned review petition came to be filed. By the order under appeal dated 07.06.2010 a learned Judge of this Court allowed the Review Petition and dismissed the writ petition on the ground that there is WA No. 1189 of 2010 -:4:- suppression of material facts and non-joinder of the necessary party, i.e., the review petitioner. The relevant portion of the order under appeal reads as follows: “In view of the fact that the petitioner in the writ petition has deliberately suppressed material facts and deliberately did not implead the petitioner in the review petition who was a necessary party to the writ petition, the writ petition would stand dismissed on that ground.” Hence the instant appeal. 6. The entire litigation, in our view, revolves round the disputed question of title and possession of immovable property. The appellant instead of initiating appropriate proceedings before the competent civil court for establishment of her rights, approached this Court by way of writ petition. It is pointed out by the learned Judge in the judgment under appeal that the appellant is guilty of suppression of material facts and the writ petition is bad from non-joinder of necessary parties. However, we do not propose to make any further comment in this matter. We do not see any reason to interfere with the judgment under appeal except to the extent of reducing the cost awarded, to WA No. 1189 of 2010 -:5:- Rs.2,000/-. We also make it clear that it will be open to the appellant to approach the competent civil court for establishment of her rights, in accordance with law. The Writ Appeal is disposed of at the admission stage. J.Chelameswar, Chief Justice. P.N.Ravindran, Judge. ttb