IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 23RD AUGUST 2008 / 1ST BHADRA 1930 WP(C).No. 24313 of 2008(T) -------------------------- E.A.NO.1016/2007 IN E.P.NO.168/07 IN RCP.98/1984 of PRL.M.C.,TRIVANDRUM .................... PETITIONER: ------------------ M.JAMAL, VAYALARIKATHU PUTHEN VEEDU, POWER HOUSE ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS: ------------- 1. A.SABEENA, THOPPIL HOUSE, THEVALLI, KOLLAM. 2. A.M.NOUSHAD, RESIDING AT DO. DO. 3. A.M.NAZEER, OF DO. IN DO. DO. 4. A.M.NAFEEL, OF DO. IN DO. 5. A.M.NAJEEM, OF DO. IN DO. DO. BY ADV. SRI.G.S.REGHUNATH FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- W.P.(C)NO.24313 OF 2008 -------------------------------- Dated this the 22nd day of August,2008 JUDGMENT Raman,J. Petitioner seeks to quash Ext.P5, which is an order passed by the Munsiff's Court, Thiruvananthapuram in E.A.No.1016/2007 in R.C.P.No.98/94. That E.A. was filed by the 6th judgment debtor to appoint a Commissioner and Surveyor to measure the property situated in Sy.No.2754/1 and 2752/2, to locate and to fix the boundary of both the properties. Admittedly, petitioner was a tenant of the building. The landlord sought eviction of the tenant from the tenanted premises, which was allowed by the Rent Control Court. There was an appeal and revision and the matter has become final. It is thereafter that the present petition was filed. The court below found that since the order was passed to give vacant possession of the petition schedule building, it is not necessary to measure and fix the boundary of the property and the -2- WP(C).No.24313/2008 purpose of the petition is only to delay the execution proceedings. Hence, the petition was dismissed. 2. The main ground urged by the petitioner in this writ petition is that he got an assignment of a piece of land adjacent to the petition schedule building under the Land Assignment Act and therefore the order of eviction passed in no way affect his right in taking in possession of the said piece of land. Admittedly, the suit was filed by the petitioner before the Munsiff's Court, Thiruvananthapuram as O.S.No.678/2004 claiming some reliefs. The learned counsel appearing for the respondents points out that similar application was filed even on the trial stage; but it was declined. There was an appeal and revision. But the tenant did not succeed. Hence, the present application, which is not even maintainable, since this question has been considered at the trial stage. 3. Admittedly, the petitioner is a tenant of a building scheduled in the eviction proceedings. Admittedly, the order has become final. If the petitioner has got any right over a piece of land adjacent thereto, the execution of the order of eviction in no way affect his right nor can it be said that any assignment is made in his favour for a piece of land, the -3- WP(C).No.24313/2008 execution court should demarcate that property in the execution proceedings. As a matter of fact, the petitioner is a tenant of a building and that is why the rent control proceeding is taken against him for eviction. If so, the court below is right in saying that demarcation of the boundary by appointing a Surveyor or by appointing a Commissioner is not a pre-requisite for executing an order of eviction passed in this case. We do not want to say anything further regarding the plea raised by the petitioner, since there is already a suit pending and any observation made by us in the proceedings shall not adversely affect the right of the parties or their contention raised. We find that the order passed by the court below does not suffer from any illegality and is not liable to be interfered in a petition under Article 226 of the Constitution of India. We do not think it is a proper case for interference. In the circumstances, the writ petition is dismissed. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.