IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 WP(C).No. 30350 of 2008(K) -------------------------- OS.82/2005 of MUNSIFF COURT, PUNALUR .................... PETITIONERS: --------------- 1. MATHAI IDICULA, MANJAPPALLIL HOUSE, KARUKONE P.O., ALAYAMON VILLAGE. 2. THANKAMANI MATHAI, DO. DO. 3. STEPHEN MATHAI, DO. DO. BY ADV. MR.B.KRISHNA MANI MR.JOSEPH T.JOHN RESPONDENTS: --------------- 1. MARIYAMMA VARGHESE, MANJAPPALLIL HOUSE, KARUKONE P.O., ALAYAMON VILLAGE. 2. BABYKUTTY VARGHESE, DO. DO. ADV. MR.PRAVEEN K. JOY FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30350 of 2008(K) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: PLAINT DTD. 03.03.2005 IN O.S.NO.82 OF 2005 BEFORE THE MUNSIFF COURT, PUNALUR. EXT.P2: WRITTEN STATEMENT ALONG WITH A COUNTER CLAIM DATED 03.11.2005. EXT.P3: JUDGMENT DATED 22.3.2007 IN O.S.NO.198 OF 2005 BEFORE THE MUNSIFF COURT, PUNALUR. EXT.P4: DECREE DATED 22.3.2007 IN O.S.NO.198 OF 2005 BEFORE THE MUNSIFF COURT, PUNALUR. EXT.P5: I.A.NO.1501 OF 2007 DTD. 10.09.2007. EXT.P6: I.A.NO.1606 OF 2006 DTD 24.08.2006. EXT.P7: OBJECTION DATED 22.9.2006. EXT.P8: I.A.NO.1520 OF 2007 DTD 14.09.2007. EXT.P9: OBJECTION DTD. 24.10.2007. EXT.P10: ORDER DATED 31.05.2008. RESPONDENTS' EXHIBITS: NIL. ...... // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.30350 of 2008 - K --------------------------------- Dated this the 16th day of September, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records leading to Ext.P10 and quash the same by a writ of certiorari or any other appropriate writ, direction or order. ii) To issue a writ of prohibition restraining the Munsiff Court, Punalur from granting the prayer in Ext.P8. iii) To stay all further proceedings in O.S.No.82 of 2005 before the Munsiff Court, Punalur until the disposal of the writ petition.” 2. Petitioners are the defendants in O.S.No.82 of 2005 on the file of the Munsiff Court, Punalur. Suit is one for fixation of boundary and the respondents are the plaintiffs. Petitioners/plaintiffs applied for an advocate commissioner to measure out the property with reference to survey records. That application was objected to by the petitioners/defendants in the suit. Learned Munsiff after hearing both sides allowed the commission application vide Ext.P10 order. Propriety and correctness of Ext.P10 order is challenged in this writ petition W.P.(C).No.30350 of 2008 - K 2 invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Learned counsel for the petitioner submitted that previously the respondents/plaintiffs had filed another suit as O.S.No.198 of 2005 against survey authorities in which the first petitioner herein was the additional third defendant, seeking a decree of mandatory injunction directing the survey authorities to measure out the properties as per a deed produced by the plaintiffs. That suit was dismissed by Ext.P3 judgment. In Ext.P3 judgment, the learned counsel submits, a finding has been entered into that the third respondent, the present first petitioner has perfected his title by adverse possession over the property. That being the case, it is submitted, the present application for appointment of a commission at the instance of the plaintiff to measure out the property with reference to survey records should have been rejected by the court below. On the other hand, the learned counsel for the respondents/plaintiffs submits that the previous suit was one for injunction and the dismissal of that suit will not way affect the right of the plaintiff to prosecute the W.P.(C).No.30350 of 2008 - K 3 present suit seeking the relief of fixation of boundaries over the plaint property. Ext.p1 is the copy of the plaint in the present suit. Ext.p2 is the written statement filed in the suit by the first defendant. Perusing Ext.P2 written statement I find that the defendant has set up a counter claim the suit. It is seen, by the counter claim raised the first defendant sought for a decree declaring that he has perfected title over the property by adverse possession. Admittedly, issues have not been settled in the suit. The question emerging for consideration is whether in view of the dismissal of the previous suit, prosecution of the present suit is barred by res judicata or under any other provisions of law. on the facts presented, prima facie, it appears, whatever be the objections to the maintainability of the suit even if any issue is raised thereof it cannot be decided without taking evidence. So much so, a disposal of the suit on a preliminary issue without taking evidence as contemplated under Order XIV Rule 2 is not possible. Then the question, what will be the effect of the observations made in Ext.P3 judgment rendered in the previous suit. Identity of the property in both the suits is not under dispute. But in a suit for injunction, possession is the main W.P.(C).No.30350 of 2008 - K 4 criteria to be determined. Perusing Ext.P3 judgment, I find that no issue has been raised with reference to the observations made by the learned Munsiff that the defendant had perfected his title by adverse possession. So the title question was not an issue in the suit. Such being the position, it is futile to contend that in view of the observations made in Ext.P3 judgment rendered in previous suit a commission cannot be taken in the present suit. If at all the defendant has got a case that the suit is barred by res judicata or under any other provisions of law he has to invite the attention of the court to frame issues thereof and decide that question. I find no impropriety or illegality in Ext.P10 order passed by the court below for measuring out the property with reference to survey records. i make it clear that none of the observations made by this Court in the judgment will have any reflection or bearing in the disposal of the suit on its merits. Writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-