IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 RP.No. 753 of 2010(L) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.29727/2008 Dated 27/11/2008 .................... REVIEW PETITIONER(S): /8TH RESPONDENT ----------------------------------------------------------------- PREMSAGAR.T.P., S/O.LATE T.K.PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., KOCHI-29. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S):PETITIONER AND RESPONDENTS 1 TO 7 IN THE WPC ------------------------------------------------------------------------------------------------------- 1. P.R.SABU, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., KOCHI-682 029. 2. DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM-682 030. 3. TAHSILDAR, KOCHI TALUK, ERNAKULAM DISTRICT-682 011. 4. TAHSILDAR, KOCHI TALUK, ERNAKULAM DISTRICT-682 011. 5. CORPORATION OF KOCHI, REPRESENTED BY SECRETARY, CORPORATION OFFICE, KOCHI-682 011. 6. SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, MATTANCHERY-682 002. 7. TALUK SURVEYOR, OFFICE OF THE TALUK SURVEYOR, ERNAKULAM-682 011. 8. T.P.BABU, S/O.LATE PADMANABHAN, THUNDIPARAMBIL HOUSE, VATHURUTHY, MALSYAPURI P.O., KOCHI-682 029. GOVT.PLEADER SRI.DILEEP MOHAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 03/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ANTONY DOMINIC, J. ================ R.P.No.753 OF 2010 IN W.P.(C) NO. 29727 OF 2008 ===================== Dated this the 3rd day of January, 2011 O R D E R The review petition is filed seeking review of the judgment in WP(C) No.29727/08. 2. The review petitioner was the 8th respondent in the writ petition. That writ petition was filed by the 1st respondent in this review petition seeking a direction to the respondents to take effective and adequate steps to demarcate Government vacant land lying between the kudikidappu lands in Sy.No.1398/1 of Rameswaram Village and to ensure that there is no encroachment into such land. A further prayer for directing not to register any document as regards the puramboke land mentioned above was also sought for. 3. During the pendency of the writ petition, the petitioner therein had produced as Ext.P4, a notice issued by the Tahsildar proposing to survey his property. Taking note of the said notice, at the admission stage itself, without hearing the review petitioner or anybody else, the writ petition was disposed of by RP.No.753/2010 IN WP(C) No.29727/2008 :2 : judgment dated 27th of November, 2008 directing that when survey as proposed in Ext.P4 notice is held, properties including that of the review petitioner will be surveyed. This direction was issued on the premise that an attempt was being made to tresspass into puramboke lands. 4. In this review petition, the review petitioner contends that, on the strength of Ext.P1 purchase certificate obtained by him, he is in possession of 2.689 cents of land in Sy.No.1398/1 of Rameswaram Village. He obtained the said purchase certificate in OA 11/95 on the file of the Land Tribunal, Vyppin. It is stated that subsequently, the 1st respondent and certain other persons attempted to tresspass into his property and that he filed OS 395/97 on the file of the Munsiff Court, Kochi. It is stated that during the pendency of that suit, the 1st respondent and others also had filed OS 494/97 and OS 438/2003. It is stated that by a common judgment rendered on 28/2/2008, OS 395/97 was partially decreed restraining the defendants therein from tresspassing into his property and that the other two suits were dismissed. RP.No.753/2010 IN WP(C) No.29727/2008 :3 : 5. It is stated that appeals against the Trial Court judgment are pending consideration of the Sub Court, Kochi. It is contended that it is suppressing all these facts and for defeating the judgment of the Civil Court that an application was filed before the Tahsildar alleging that the review petitioner had tresspassed into the vacant land and the writ petition was filed in which the aforesaid judgment was obtained. Learned counsel for the petitioner also contended that if at all the petitioners had a case that there was any tresspass or obstruction to their pathway, the remedy available to them was to have moved the Civil Court. 6. I heard the counsel appearing for the 1st respondent, who had filed WP(C) No.29727/08. According to him, what made him to file the writ petition was the attempt on the part of the review petitioner to tresspass into the vacant land and to obstruct the pathway available to him and also to the other kudikidappukars. It is stated that it was therefore that he made representation for survey, which resulted in the judgment in question. 7. First of all, the entire property, in which kudikidappu RP.No.753/2010 IN WP(C) No.29727/2008 :4 : rights has been given to the review petitioner, to the 1st respondent and also to other kudikidappukars, originally belonged to the Canara Bank. Even going by the counter affidavit filed by the Government in WP(C) No.3701/10, the pattadar of the entire property is the Canara Bank and no puramboke land is involved. Therefore, the premise on which the judgment was rendered that attempt has been made to trespass into the puramboke land seems to be factually incorrect. 8. If that be the position, the dispute between the review petitioner and the 1st respondent who had filed the writ petition boils down to an allegation of the 1st respondent that the review petitioner had trespassed into the vacant land used as access by the kudikidappukars and that he had blocked their entry to their respective holdings. Since this allegation has been stoutly denied by the review petitioner, in my view, if at all the 1st respondent had such a case against the review petitioner, the remedy open to the 1st respondent was to have moved the Civil Court for appropriate reliefs and it was for the Civil Court to have adjudicated on the disputed question of fact and granted RP.No.753/2010 IN WP(C) No.29727/2008 :5 : appropriate reliefs in the matter. 9. Instead of pursuing such a legally permissible course, what the 1st respondent seems to have done was to have made an application for survey to the Tahsildar and approached this Court by alleging that tresspass is being committed in the Government land and that puramboke land is being attempted to be alienated. 10. In my view, the application made before the Tahsildar and the writ petition filed before this Court were misconceived and this Court could not have interfered in such a manner. In that view of the matter, I allow RP No.753/2010. ANTONY DOMINIC, JUDGE Rp