IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 WP(C).No. 15881 of 2010(O) ------------------------- AGAINST THE ORDER IN IA.856/2010 IN AS.8/2008 of SUB COURT, TIRUR O.S.NO.242 OF 1993 OF MUNSIFF'S COURT, TIRUR .................... PETITIONER(S): --------------- KATTUMEDATHIL ENTHEEN S/O.MOIDEENKUTTY, MARAKKARA AMSOM KIZHMURI DESOM, TIRUR TALUK, MALAPPURAM. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): --------------- VIRUTHULLIL CHEKKUTTY S/O.KADER, MARAKKARA AMSOM DESOM, TIRUR TALUK, MALAPPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.15881 of 2010 -------------------------------------- Dated this the 25th day of May, 2010. JUDGMENT Writ petitioner is the respondent in A.S.Nos.7 of 2008 and 8 of 2008 arising from common judgment and decree in his favour in O.S.Nos.233 of 1994 and 242 of 1993, the former being a suit for fixation of boundary preferred by the petitioner which went in his favour and the latter being a suit for injunction preferred against the petitioner which was decided in his favour. During pendency of the appeals before learned Sub Judge, Tirur petitioner filed I.A.No.856 of 2010 for permission to dig a well in the disputed site. Learned Sub Judge after hearing both sides refused to grant permission holding that the well is sought to be dug at the disputed site and the prayer lacks bonafide. That order is under challenge in this petition. Learned counsel for petitioner would submit that only a small portion of the land is required to dig the well and if at all the cases are decided against the petitioner he will not make any claim over the said well. 2. That, petitioner would not later make any claim is not a ground to grant permission sought for. Now, the well is sought to be dug at the disputed site. Learned Sub Judge has observed that petitioner has no case that he has made attempt to ascertain availability of water in any part of the undisputed portion of the property belonging to him and that was taken as a ground to WP(C) No.15881/2010 2 suspect bonafides of petitioner. When the dispute is pending before court, and also in the light of the fact that petitioner could have attempted to construct the well in any portion of the undisputed portion of the property I do not find reason to interfere with the discretion exercised by learned Sub Judge which cannot said to be patently erroneous or manifestly unjust. The order under challenge comes within the discretionary jurisdiction of the learned Sub Judge. I do not find reason to interfere under Article 226 or 227 of the Constitution. Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks