IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 OP(C).No. 3325 of 2011(O) ------------------------- OS.292/2010 of II ADDL.MUNSIFF COURT,THIRUVANANTHAPURAM .................... PETITIONERS ----------------------- 1. BALAKRISHNAN NAIR,S/O.RAGHAVAN PILLAI, RENUKA VILASAM,NETTAYAM,MANIKATESWARAM(P.O), PEROORKKADA VILLAGE,THIRUVANANTHAPURAM-695013. 2. GOPALAKRISHNAN NAIR,S/O.MADHAVAN PILLAI, SREE PADAM,SPRA-246-A,NETTAYAM,NETTAYAM(P.O), PEROORKKADA VILLAGE,THIRUVANANTHAPURAM-695013. BY ADV. SRI.GOPAKUMAR R.THALIYAL RESPONDENT(S): ------------------------- 1. SREE PIDAYANNOOR DEVI,REPRESENTED BY THE SECRETARY OF THE PIDAYANNOOR DEVI TEMPLE TRUST, NETTAYAM,PEROORKKADA VILLAGE,THIRUVANANTHAPURAM, PIN-695013. 2. SREE PIDAYANNOOR DEVI TEMPLE TRUST, REPRESENTED BY ITS SECRETARY,NETTAYAM, PEROORKKADA VILLAGE,THIRUVANANTHAPURAM-695013. 3. SURESH,S/O.MADHAVAN NAIR,THRIPPADAM, T.C.NO.6/312-3,PAMGROVE LANE,NEAR VATTIYOORKAVU SASTHAM KOVIL,VATTIYOORKADAVY(P.O)VATTIYOORKAVU VILLAGE,THIRUVANANTHAPURAM-695013. 4. SREEKUMAR,S/O.RAGHAVAN PILLAI, SREE GEETHA BHAVAN,VP NO.XV/248,PWRA NO.68, NEAR PUTHUVOORKONAM DEVI TEMPLE,VATTIYOORKADAVU.PO PEROORKKADA VILLAGE,THIRUVANANTHAPURAM-695013. OP(C).No. 3325 of 2011(O) -------------------------------------- 5. NANDAKUMAR,S/O.NEELAKANDAN NAIR, SARASEEJAM, ASRAMAM ROAD NETTAYAM PO., PEROORKKADA VILLAGE,THIRUVANANTHAPURAM-695013. 6. CHANDRASEKHARAN NAIR,S/O.NARAYANAN NAIR, LALI,V.P.NO.IV/367,SPRA NO.222,SREERAM NAGAR, NETTAYAM(P.O),THIRUVANANTHAPURAM-695013. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 3325 of 2011(O) ------------------------------------- APPENDIX ----------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1 COPY OF THE PLAINT IN O.S. NO.292 OF 2010 DATED 9.2.2010 IN THE FILE OF THE 2ND ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXT.P2. COPY OF THE WRITTEN STATEMENT IN O.S. NO.292 OF 2010 ON THE FILE OF THE 2ND ADDL. MUNSIFF COURT. EXT.P3. COPY OF THE COMMISSION APPLICATION DATED 27.01.2011. EXT.P4. COPY OF THE PETITION TO SET SIDE THE EXPARTE ORDER DATED 01.08.2011. EXT.P5. COPY OF THE ORDER PASSED BY THE 2ND ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM IN I.A. NO.2607/2077 IN O.S. NO.292/2010 DATED 24.098.2011. RESPONDENT'S EXHIBITS : NIL ------------------------------------ / TRUE COPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3325 of 2011 --------------------------------------- Dated this 17th day of October, 2011 JUDGMENT Petitioners are the plaintiffs in O.S.No.292 of 2010 of the Court of learned Second Additional Munsiff, Thiruvananthapuram. The suit is for injunction to restrain respondents from trespassing into the suit property, destroying its boundaries, constructing road through the said property etc. Respondents raised various contentions including that description of the suit property is not correct, petitioners had filed O.S.No.195 of 2008 against respondents for the very same relief in respect of the very same property and with the very same description where also respondents contended that the description is not correct. Petitioners withdrew the suit and filed a fresh suit with the very same description. In paragraph 3 it is stated that petitioners are not the owners of the entire property and the properties covered by documents do not exist. In paragraph 5, respondents claimed that the suit property takes in public property as well which respondents and other members of the public are entitled to use. Petitioners filed I.A.No.2607 of 2011 for the issue of commission to identify the suit property O.P(C).No.3325 of 2011 -: 2 :- with reference to its lie, documents and survey records and prepare a plan marking four boundaries. That application was dismissed by the learned Munsiff by Ext.P5, order dated 24.08.2011. The said order is under challenge. 2. Learned counsel submits that in view of the contention raised by the respondents, a proper identification of the property is required. Learned counsel also submits that the case is coming up for trial in the list on 18.10.2011. It is submitted that petitioners got a copy of the impugned order only on 11.10.2011. 3. Learned Munsiff has observed that the suit is merely for injunction, no issue has been framed as to title and that question to be decided in the suit is only of possession. Even according to the petitioners, in O.S.No.195 of 2008 the Advocate Commissioner inspected the property and reported the factual situation. Since the suit is only for injunction, no court fee has been paid under Sec.27(c) of the Kerala Court Fees and Suit Valuation Act and no issue also is raised regarding title, I do not find reason to interfere with Ext.P5, order. But I make it clear that this judgment will not preclude the right of petitioners to challenge correctness of Ext.P5, order in an appeal that may O.P(C).No.3325 of 2011 -: 3 :- arise from the judgment and decree in O.S.No.292 of 2010. Without prejudice to that right of petitioners, this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-