IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 20545 of 2008(U) ------------------------------------- FAO.55/2004 of SUB COURT, KOTTARAKKARA .................... PETITIONERS : -------------------- 1. CHACKO CHACKO, KOYITHARA HOUSE, NEITHUMUKKIL, VILAKKUVETTOM MURI, VADACODU VILLAGE, PATHANAPURAM TALUK. 2. MOLY, W/O.CHACKO CHACKO, KOYITHARA HOUSE, NEITHUMUKKIL VILAKKUVETTOM MURI, VADACODE VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.S.SREEKUMAR RESPONDENTS : ---------------------- 1. ANITHA RAJU, RAFEKHA BHANU VILASOM BUNGLOW, PUNALUR MURI, PUNALUR VILLAGE. 2. MANJU THOMAS, RAFEKHA BHANU, VILASOM BUNGLOW, PUNALUR MURI, PUNALUR VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 20545 OF 2008 ............................................ DATED THIS THE 8th DAY OF JULY, 2008 JUDGMENT Petitioners are the defendants and respondents, the plaintiffs in O.S.255 of 1999 on the file of Munsiff Court, Punalur. The suit is for injunction. The plaint schedule property is 2.84 acres in Survey No.538/1/218 of Valakode Village of Pathanapuram Taluk. In the suit, petitioners, defendants filed I.A.2385 of 2002, an application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, restraining respondents/plaintiffs from trespassing into the property shown in the written statement. Under Ext.P6 order, learned Munsiff granted an order of injunction in their favour. Respondents challenged that order before Sub Court, Kottarakara in FAO 55 of 2004. Learned Sub Judge, under Ext.P7 order, finding that the property for which an order of injunction was granted under Ext.P6 is having an extent of 4 acres 66 cents, held that petitioners are not entitled to the order, especially when there is no counter claim raised in the suit and set aside Ext.P6 order. This petition is filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner was heard. WP(C) 20545/2008 2 The argument of the learned counsel is that Ext.P2 report submitted by the Commissioner establish that plaint schedule property is not within the boundaries shown in the plaint and though extent in Survey No.538/1/218 is shown in the plaint as 2.84 acres, actual extent is only 2.61 acres and it is in survey No.538/1/218A and not in the survey number shown in the plaint. Learned counsel also pointed out that respondents have subsequently filed an application to amend the plaint to incorporate the survey number, boundary and extent shown by the Commissioner in the report, but that application was dismissed and though it was challenged before this court, the writ petition was also dismissed under Ext.P3 judgment. Learned counsel argued that in view of the order originally obtained by respondents against petitioners, respondents constructed a fence in the property of petitioner and are obstructing the tapping of rubber trees, which they are not entitled to and therefore learned Sub Judge was not justified in interfering with the order. Learned counsel also argued that even if plaint schedule property does not form part of the property claimed by petitioner in the written statement, respondents are claiming that property as plaint schedule WP(C) 20545/2008 3 property and therefore the order granted by the trial court under Ext.P6 is to be restored. 3. On hearing the learned counsel, I do not find any reason to interfere with Ext.P7 order passed by learned Sub Judge. While granting an order in favour of petitioners under Ext.P6, learned Munsiff did not bear in mind the fact that even according to petitioners, the property claimed by them in the written statement, for which an order of injunction was sought, is not the plaint schedule property. According to the petitioners, plaint schedule property is different and the property claimed in the written statement which belongs to them. As rightly found by learned Sub Judge, petitioners did not raise a counter claim in respect of the property claimed by them in the written statement. In such circumstances, when the plaint schedule property is only having an extent of 2.84 acres and that too, when the Commissioner found that the extent of the property available in survey No.538/1/218A is only 2.61 acres and when petitioners are contending that plaint schedule property is different from the property identified by the Commissioner, learned Munsiff was not justified in granting an order, which was rightly corrected by learned Sub Judge under Ext.P7 order. In WP(C) 20545/2008 4 such circumstances, petition is dismissed. Learned Munsiff is directed to dispose the suit, as expeditiously as possible, at any rate, within five months from the date of receipt of a copy of this judgment, untrammelled by any observation in Ext.P7 order or this judgment. M.SASIDHARAN NAMBIAR, JUDGE lgk/-