IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 Tr.P(C).No. 215 of 2007() ------------------------- OS.213/2007 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONERS: -------------- 1. DHAVAMONY, R.V. ILLAM, PUTHIAKAVU MURI, MAVELIKKARA VILLAGE. 2. LEKSHMI AMMAL, R.V. ILLAM, PUTHIAKAVU MURI, MAVELIKKARA VILLAGE. 3. VINOD, R.V. ILLAM, PUTHIAKAVU MURI, MAVELIKKARA VILLAGE. 4. SAKTHIDEVI, R.V. ILLAM, PUTHIAKAVU MURI, MAVELIKKARA VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENT: ------------- P. MADHAVAN, SUPREME ILLOM, PUTHIAKAVU MURI,MAVELIKKARA VILLAGE BY ADV. SRI.B.S.SWATHY KUMAR SRI.K.HARILAL SRI.BINDU SREEKUMAR THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- Tr.P.C. NO. 215 OF 2007 --------------------- Dated this the 15th day of January, 2008 ORDER This petition is filed with a prayer to transfer O.S. 213/07 pending before the Munsiff's Court, Mavelikara, to Subordinate Judge's Court, Mavelikkara, for trial and disposal of the case along with O.S. 122/07, pending in that court. O.S. 213/07 pending before the Munsiff's Court, Mavelikara, is a suit filed for fixation of the boundary by the respondent herein. O.S. 122/07 is filed by the 1st petitioner herein against the respondent for specific performance of the contract. 2. Learned counsel for the transfer petitioner had invited my attention to Para 8 of the plaint in O.S. 122/07. There is a recital therein that “the plaint schedule is in the possession of plaintiff and it lies contiguous with other property. The oven or Bormah overlaps to plaint schedule.” 3. It is true that the property involved in these two cases are the same. But the sphere of consideration in both cases does not appear to be the same. In the suit for specific performance of a Tr.P.C. No.215/07 2 contract, what the court has to find out is whether there is an agreement for sale and whether the plaintiff is ready and willing to perform part of the contract and whether the defendant has committed a breach of contract. In a suit for fixation of boundary, what the court has to find out is which is the boundary separating the properties. In such case, the neighbouring owners are also impleaded as parties so that all the four sides can be considered and the boundary can be fixed. So just because the properties are the same and there is a dispute pending between the parties regarding the fixation of boundary, it may not be correct to direct the Subordinate Judge to try the case, which is pending in the Munsiff's Court, unless it is really necessary to have a joint trial of the case. From the discussion above, I feel that a joint trial is not necessary and the issue for consideration in both cases are different, which requires independent evaluation. So I hold that there need not be any transfer of the case. The transfer petition is accordingly dismissed. M.N.KRISHNAN, JUDGE vps Tr.P.C. No.215/07 3