IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 19282 of 2008(U) -------------------------------------- PETITIONERS: -------------------- 1. P.K. KOCHUPILLA NAIR, AGED 84 YEARS, S/O. KRISHNAN, PARAYIL HOUSE, PALLIPURAM, CHERTHALA. 2. SURESHKUMAR, AGED 44 YEARS, KOCHUPILLA NAIR, PARAYIL HOUSE, PALLIPURAM, CHERTHALA. BY ADV. SRI.V.L.SHENOY SRI.L.JAYAWANTH RESPONDENTS: ---------------------- 1. CHENNAM PALLIPURAM GRAMA PANCHAYATH, REP. BY ITS SECRETARY, PALLIPURAM.P.O. 2. DEPUTY DIRECTOR OF PANCHAYATH, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH, ALAPPUZHA. 3. RAJAMMA, AGED 47, D/O. KOCHUPILLA NAIR, LAXMI VATIKA, PALLIPURAM.P.O, CHERTHALA. 4. GEETHA, AGED 40 YEARS, D/O. KOCHUPILLA NAIR, ''GOURI SANKARAM'', MARUTHORVATTOM.P.O, CHERTHALA. GOVERNMENT PLEADER SRI.K.C.SANTHOSHKUMAR FOR R2 ADV. SRI.G.GOPAKUMAR (CHERTHALA) FOR R1 SRI.B.PRAMOD FOR R3 & R4 SRI.GEORGE MATHEWS FOR R3 & R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).19282/2008-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SETTLEMENT DEED NO.2479/2006 DATED 29/08/2006 ON THE FILE OF SRO PANAVALLY. EXT.P2: COPY OF THE APPLICA/TION DATED 28/08/2007 MADE BY THE 1ST PETITIONER IN O.S. NO.BEFORE THE 1ST RESPONDENT. EXT.P3: COPY OF THE COMMUNICATION DATED 22/02/2008 SENT BY THE PETITIONERS TO THE 2ND RESPONDENT. EXT.P4: COPY OF THE ORDER NO.C3-2129/08/L.DIS DATED 31/03/2008 BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE ORDER DATED 28/10/2006 IN I.A.3058/2006 IN O.S.724/2006 ON THE FILE OF MUNSIFF'S COURT, CHERTHALA. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE I.A. NO.2995/2006 IN O.S. NO.712/2006 OF THE MUNSIFF'S COURT, CHERTHALA. EXT.R4(b): COPY OF THE INJUNCTION ORDER DATED IN I.A. NO.2995/2006 IN O.S. NO.712/ 2006 OF THE MUNSIFF'S COURT, CHERTHALA. EXT.R4(c): COPY OF THE I.A. NO.1619/2007 IN O.S. NO.712/2006 OF THE MUNSIFF'S COURT, CHERTHALA. EXT.R4(d): COPY OF THE COMMISSIONER'S REPORT DATED 01/11/2006 IN O.S. NO.712/2006 OF THE MUNSIFF'S COURT, CHERTHALA. EXT.R4(e): COPY OF THE COMMISSIONER'S REPORT DATED 18/07/2007 IN O.S. NO.712/2006 OF THE MUNSIFF'S COURT, CHERTHALA. EXT.R1(a): COPY OF THE REPORT DATED 07/01/08. EXT.R1(b): COPY OF THE APPLICATION DATED 28/09/07 AND THE ORDER DATED 25/10/2006. // TRUE COPY // P.S. TO JUDGE Rs/ ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 19282 of 2008 -------------------------------------------------------- Dated: AUGUST 11, 2008 JUDGMENT The controversy in this writ petition is regarding the claim of the petitioners for numbering a building constructed by them in a plot of 39 cents of land of Sy.No.190/19 of Pallippuram Village. It would appear that the Panchayat declined to number the building because of the dispute that has been raised by respondents 3 and 4, who are none other than the children of the 1st petitioner. The Panchayat also says that in terms of the report given by the Village Officer, the aforesaid property is in the name of the 1st petitioner's wife. This observation is stated to have been made by the Village Officer based on the village records. 2. Learned counsel for the petitioners submits that the Village Officer's report is factually erroneous and that the title deed would prove that the property is in his name WP(C) 19282/08 2 and possession. It is also pointed out that there are two civil suits pending between the petitioners and respondents 3 and 4. O.S.712/2006 is a suit filed by respondents 3 and 4 seeking partition of the properties in Sy.No.190/18A and 190/16B of Pallippuram Village. According to the 1st petitioner, he has no objection in allowing the suit. However, respondents 3 and 4 would point out that they have obtained an order of injunction against the petitioners, a copy of which is Ext.R4(b). A reading of this order shows that the injunction has been granted restraining the petitioners herein from making construction in the plaint schedule properties which are the properties mentioned in the aforesaid two survey numbers and, according to the petitioners, it does not include the property in Sy.No.190/19 in which the building is constructed. 3. True, the learned counsel for respondents 3 and 4 has a case that the construction has been completed by the petitioners, trespassing into a portion of the property WP(C) 19282/08 3 included in the schedule to OS 712/2006. However that is a matter which is in dispute between the parties and is therefore it is essentially for the civil court to adjudicate upon the dispute. 4. Be that as it may, it is seen that the petitioners have also filed OS 724/2006 before the Munsiff's Court, Cherthala for a declaratory decree. In that suit, the Munisff's Court has passed Ext.P5, an order of injunction, restraining the defendants therein from disturbing the peaceful possession and enjoyment of the petitioners over the property in Sy.No.190/19 where the building in question has been constructed. So long as Ext.P5 order of injunction is in force, necessarily petitioners are entitled to enjoy the benefits thereof. 5. If, as stated by the petitioners, the building has been constructed in the land in Sy.No.190/19, they are entitled to enjoy the same and the Panchayat has to consider the application for numbering the building. WP(C) 19282/08 4 However, considering the fact that the Village Officer's report that the land in question is in the name of the 1st petitioner's wife and as the 1st petitioner is contradicting his assertion, I direct that the consideration of the petitioners' application for numbering the building will be on the 1st petitioner producing his title deed before the Secretary of the Panchayat. 6. As already noticed, it is the case of respondents 3 and 4 that the construction undertaken by the petitioner is after trespassing into the property which is scheduled to OS 712/06. This is a disputed issue and is yet to be adjudicated by the civil court. 7. Since the matter is pending before the civil court, I direct that though the Panchayat shall consider the application of the petitioners for numbering the building untrammeled by the pendency of the suit, if the Civil Court ultimately finds that trespass has been committed by the petitioners, it will be open to respondents 3 and 4 to move WP(C) 19282/08 5 the Panchayat, in which case, the Panchayat shall pass revised orders consistent with the finding of the Civil Court in that behalf. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE mt/-