IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 WP(C).No. 22992 of 2010(Y) -------------------------------------- PETITIONERS: --------------------- 1. SOBHANAMANI.S.B, W/O.LATE K.V.MOHANAN PILLAI, KADACKAL MOHANA VILASAM,KANDALLUR FROM ILLIKULATH HOUSE,MEMANA, OCHIRA. 2. JANCY RANI, W/O.RADHAKRISHNAN NAIR.K.P, PANNIVISHA PARAMESWAR,KIZHAKKEN OTHARA, ERAVIPEROOR , FROM ILLIKULATH HOUSE,MEMANA,OCHIRA. BY ADVS. SRI.S.SUBHASH CHAND, SRI.T.NIKLAVU. RESPONDENTS: ------------------------ 1. REVENUE DIVISIONAL OFFICER,OFFICE OF THE REVENUE DIVISIONAL OFFICER, KOLLAM-691 001. 2. TAHASILDAR,TALUK OFFICE, KARUNAGAPPALLY, PIN – 690 518. 3. TALUK SURVEYOR, TALUK OFFICE, KARUNAGAPPALLY, PIN -690 518. 4. REMABAI PILLAI, W/O.SIVASANKARA PILLAI, ILLIKULATH HOUSE,MEMANA,OCHIRA, PIN - 690 526. 5. SIVASANKARA PILLAI, ILLIKULATH HOUSE,MEMANA,OCHIRA, PIN – 690 526. R1 TO R3 BY GOVT. PLEADER SRI. DILEEP MOHAN, R4 & R5 BY ADVS. SRI.B.MOHANLAL, SRI.C.SINOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.22992/2010-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REGISTERED PARTITION DEED DTD. 09/05/1997. EXT.P.2: COPY OF THE TAX RECEIPT DTD. 17/04/2010 IN RESPECT OF THE PROPERTIES OF PETITIONER NO.1. EXT.P.3: COPY OF THE TAX RECEIPT DTD. 17/04/2010 IN RESPECT OF THE PROPERTIES OF P.2. EXT.P.4: COPY OF THE ORDER DTD. 07/06/2010 PASSED BY THE COURT OF THE MUNSIFF, KARUNAGAPPALLY. EXT.P.5: COPY OF THE STATUTORY APPLICATION IN FORM NO.10 SUBMITTED BY P.1. EXT.P.6: COPY OF THE STATUTORY APPLICATION IN FORM NO. 10 SUBMITTED BY P.2. EXT.P.7: COPY OF THE CHALAN DTD. 30/04/2010. EXT.P.8: COPY OF THE STATUTORY NOTICE IN FORM NO.12 DTD. 05/05/2010 ISSUED BY R.3. EXT.P.9: COPY OF THE JUDGMENT DTD. 25/05/2010 PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.14847/2010. EXT.P.10: COPY OF THE REPRESENTATION DTD. 18/06/2010 SUBMITTED BY R.4. BEFORE R.1. EXT.P.11: COPY OF THE I.A. NO. 1271/2010 SUBMITTED BY R.4. BEFORE THE COURT OF THE MUNSIFF, KARUNAGAPPALLY IN O.S. NO. 120/2010. EXT.P.12: COPY OF THE I.A. NO.1272/2010 SUBMITTED BY R.4. BEFORE THE COURT OF THE MUNSIFF, KARUNAGAPPALLY IN O.S. NO. 120/2010. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE COMMISSION REPORT AND THE SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO. 120/2010 OF THE MUNSIFF COURT, KARUNAGAPPALLY. EXT.R4.B: COPY OF THE I.A. NO. 1271/2010 IN O.S. NO. 120/2010 OF THE MUNSIFF COURT, KARUNAGAPPALLY. EXT.R4.C: COPY OF THE I.A. NO. 1272/2010 IN O.S. NO. 120/2010 OF THE MUNSIFF COURT, KARUNAGAPPALLY. EXT.R4.D: COPY OF THE NOTICE ISSUED BY THE MUNSIFF COURT, KARUNAGAPPALLY IN O.S. NO. 192/2010 TO THE RESPONDENTS 4 AND 5. EXT.R4.E: COPY OF THE OBJECTION FILED BY THE RESPONDENTS 4 AND 5 IN O.S. NO. 192/2010 OF THE MUNSIFF COURT, KARUNAGAPPALLY TO VACATE EXT.P.4. ORDER. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.22992 OF 2010(Y) -------------------------------------------------- Dated this the Ist day of November, 2010 J U D G M E N T An extent of 1.69 acres of land situated in Rs.No.77/7 and 77/8 of Ochira Village, originally belonging to the parents of petitioners 1 and 2 and respondent No.4 and others. The father of the parties, Sri. Sukumara Pillai expired on 25.12.1996. According to the petitioners, thereafter on 9.5.1997, by Ext.P1 partition deed, the property belonging to Sri. Sukumara Piallai and his wife, were partitioned among the legal heirs. 2. It is stated that as per Schedule No.III, 41.25 cents were allotted to the 4th respondent whereas by Schedule No. IV and V 45 cents each were allotted to petitioners 1 and 2. It is the case of the petitioners that thereupon the properties were mutated by the respective allottees and tax was being paid separately. Subsequently petitioners 1 and 2, states that they alienated 5.75 cents and 8.5 cents respectively by documents executed on 18.12.2006 and 15.12.2006 and are holding the remaining extent out of the schedules IV and V to Ext.P1. WPC.No. 22992/2010 :2 : 3. The mother, in whose favour, the property contained in Schedule No.1 of Ext.P1 was allotted, also expired on 27.7.2006. It is stated that still later, in 2010 respondent No.4 filed O.S.No.120/2010 before the Munsiff Court, Karunagapally seeking to set aside Ext.P1 partition deed. That suit is pending. 4. While so, petitioners herein also filed O.S.No.192/2010, seeking an order restraining respondents 4 and 5 from trespassing into their property. It is stated that Civil Court passed Ex.P4 order of injunction and that the said order is still in force. While so, according to the petitioners invoking Rule 43 and 44 of the Survey and Boundaries Rules, they filed Exts.P5 and P6 applications before the 2nd respondent. It is stated that the fee prescribed has also been remitted as per Ex.P7. It is stated that on receipt of the applications, the 3rd respondent issued Ext.P8 notice fixing survey on 14.5.2010 and that at that stage, objecting to the survey, the 4th respondent filed WP(c).No.14847/2010 before this court. 5. According to the petitioners, when the writ petition came up for admission, after arguing the case for some time, the writ petition was withdrawn, without prejudice to the right of the 4th respondent to move the Munsiff's Court, Karunagapally by making WPC.No. 22992/2010 :3 : an appropriate application in O.S.No.120/2010. It is stated that without filing an application as permitted by this court in Ext.P9 judgment, the 4th respondent filed Ext.P10 representation before the Revenue Divisional Officer. According to the petitioners, on receipt of the representation, the Revenue Divisional Officer made an endorsement on the representation, directing the Tahsildar to comply with the directions contained in Ext.P9 judgment and to consider the application favorably. 6. Petitioners state that with the endorsement, Ext.P10 application was forwarded to the Tahsildar and on account of the endorsement of the RDO, the application is kept pending. It is in these circumstances, the writ petition has been filed seeking to quash the endorsement made by the Revenue Divisional Officer on Ext.P10 representation and to direct respondents 2 and 3 to proceed with the survey pursuant to Exts.P5 to P8. 7. Counsel for the petitioners contend that there is no order passed by the Civil Court or any other authority restraining respondents 2 and 3 from proceeding with the application. It is stated that the Revenue Divisional Officer, despite the directions in Ext.P9 judgment rendered by this court, passed endorsement on Ext.P10 and as a result of which the survey and demarcation WPC.No. 22992/2010 :4 : of the property is kept in abeyance. It is also argued that the RDO has passed the endorsement on Ext.P10, without realising that there was no direction in Ext.P9 judgment. Therefore the endorsement made is argued to be illegal and that their property is to be surveyed in terms of Rules 43 and 44 of the Survey and Boundaries Rules , petitioners submits. 8. Counsel for the respondents 4 and 5 submits that the dispute between the parties is pending before the Civil Court and therefore, as directed in Ext.P9 judgment, the petitioners should also be relegated to pursue their claim before the Civil Court itself. It is also their contention that despite the claim of the petitioners that the properties have been mutated by the respective allottees, the property is still lying as a compact block and therefore during the pendency of the suit filed by them, the survey is impermissible. It is also their contention that the partition deed itself is a fraudulent document and is liable to be set aside. 9. In so far as this writ petition is concerned, this court is not pronouncing upon the validity of Ext.P1 or such other contentions which are raised by the parties and pending before the Civil Court. As far as this case is concerned, the only issue WPC.No. 22992/2010 :5 : that need to be considered by this court is the claim of the petitioners that they are entitled to have further action taken on Exts.P5 and P6. 10. Despite the fact that a civil suit has been filed by respondents 4 and 5 and despite having made an application for impleadment of respondents 2 and 3 in the suit, even as on date, there is no order passed by the Civil Court restraining survey or demarcation. If that be so, so long as the partition deed remains valid and so long as there is no order passed by the Civil Court, in my view, the RDO was not justified in making endorsement on Ext.P10 which in effect has stopped further action in pursuance to Exts.P5 to P8. 11. The other fact which is emerging in this case is that when the matter was taken up for hearing on 8.9.2010, the petitioners contended that despite the liberty given by this court in Ext.P9, respondents 4 and 5 had not moved the Civil Court and on the other hand had chosen to move the Revenue Divisional Officer and obtained endorsement on Ext.P10. This submission was countered by respondents by contending that they have already moved I.A. in OS.No.120/2010. That submission was recorded and this court directed the respondents to file an WPC.No. 22992/2010 :6 : affidavit producing the details of the I.A and also disclosing the status of the I.A. Accordingly, the respondents have produced Ext.R4(b) and (c), the I.As filed by them. These I.As do not carry either the date of its filing or the date of its affirmation or attestation. In the counter affidavit filed on 12th September, 2010 also these dates were not disclosed. 12. In view of the coercive nature of the affidavit that was filed by the party respondents, when the matter came up for orders before this court on 16.9.2010, the petitioners asserted that the interlocutory applications were filed by the respondents only on 13.9.2010. Thereupon by order dated 16.9.2010, the petitioners were directed to file an affidavit within ten days. Accordingly, along with the reply affidavit dated 20th September, 2010, the petitioners have produced certified copies of the aforesaid interlocutory applications filed by respondents 4 and 5 as Exts.P11 and P12. This documents show that although the date on which these I.As were signed are absent, the I.As were attested on 9th September, 2010 and were filed in Court only on 13.9.2010. 13. Therefore, it is obvious that on 8.9.2010, the submission made before this court that interlocutory applications in WPC.No. 22992/2010 :7 : pursuance to the liberty given in Ext.P9 judgment were filed is factually incorrect. Although this incorrect submission made by the respondents, needs to be contemned, still having regard to the aforesaid facts and in the light of the fact that there is no order passed by any authority restraining further action based on Exts.P5 to P8, I am inclined to think that the Revenue Divisional Officer's intervention was uncalled for and the respondents 2 and 3 are directed to proceed with Exts.P5 to P8, ignoring the endorsement made by the Revenue Divisional Officer on Ext.P10. This the respondents 1 and 2 shall do, on the production of a copy of the judgment. 14. Needless to say anything done in pursuance to the aforesaid direction will be subject to the outcome of the pending civil suit. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 22992/2010 :8 :