IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 18TH JULY 2007 / 27TH ASHADHA 1929 OP.No. 1819 of 2001(N) ---------------------- PETITIONERS: ------------ 1. ALEMMA, AGED 55, D/O.MATHAI, THELAPPILLY HOUSE, MOOKKANNOOR KARA, MOKKANNOOR VILLAGE. 2. SOSAMMA, AGED 41, D/O.MATHAI, DO. DO. 3. KUNJUKUNJU, AGED 53, S/O.MATHAI, DO. DO. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.K.SETHUNATH RESPONDENTS: ------------- 1. THE STATE OF KERALA, REP. BY DIST. COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD. 2. THE SUPERINTENDENT, SURVEY & LAND RECORDS, COLLECTORATE, CIVIL STATION, KAKKANAD. 3. THE TAHSILDAR, TALUK OFFICE, ALUVA TALUK, ALUVA. 4. PAPPACHAN, AGED ABOUT 70, S/O.MATHEW, KOORANPULIYAPPILLY HOUSE, MOOKKANNOOR KARA, MOOKKANNOOR VILLAGE (DIED) ADDL. 5. SHEEBA, AGED ABOUT 44, D/O.LATE PAPPACHAN, KOORAMPULIYAPPILLY HOUSE, MOOKKANNOOR KARA, MOOKKANNOOR VILLAGE. “ 6. SHIBU, S/O.LATE PAPPACHAN, DO. DO. “ 7. SHELBIN, S/O.LATE PAPPACHAN, DO. DO. “ 8. ALIYAMMA, W/O.LATE PAPPACHAN, DO. DO. OP.1819/01 LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 8 IN THE O.P. AS PER ORDER DATED 18.7.2007 IN I.A.10843/05 R1 TO R3 BY GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA. R5 TO R8 BY ADV.SRI.DINESH R.SHENOY THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.1819/01 APPENDIX PETITIONER'S EXTS: EXT.P1 – TRUE COPY OF SETTLEMENT DEED DT.4.2.86 EXT.P2 – TRUE COPY OF SALE DEED DT.14.7.81 EXT.P3 – TRUE COPY OF TAX RECEIPT DT.10.2.95. EXT.P4 – TRUE COPY OF PLAN PREPARED BY SURVEYOR. EXT.P5 – TRUE COPY OF REPORT DT.2.4.97. EXT.P6 – TRUE COPY OF PLAINT IN O.S.80/98 OF MUNSIFF'S COURT, ALUVA. EXT.P7 – TRUE COPY OF INTIMATION DT.20.11.2000 FROM R2. EXT.P8 TRUE COPY OF WRITTEN STATEMENT FILED BY R4 IN O.S.15/88 OF MUNSIFF'S COURT, ALUVA, DT.3.6.88. EXT.P9 – PHOTO COPY OF COMMN. REPORT DT.2.9.04 ALONG WITH THE PLAN IN O.S.80/98 OF MUNSIFF'S COURT, ALUVA. /TRUE COPY/ PIUS C. KURIAKOSE, J. .......................................................... O.P.No.1819 OF 2001 ........................................................... DATED THIS THE 18th JULY, 2007 J U D G M E N T Ext.P7 order of the Survey Superintendent rejecting an application submitted by the petitioners for making corrections in the re-survey plan is under challenge. The reason assigned in Ext.P7 is that a boundary dispute is subsisting between the parties. 2. Heard Sri.V.Rajendran Perumbavoor, counsel for the petitioners and Sri.Dinesh R.Shenoy, counsel for the party- respondents. 3. It is submitted by both sides that a suit O.S.No.80 of 1998 seeking fixation of the disputed boundary is pending before the Munsiff's Court, Aluva. According to Mr.Dinesh R.Shenoy, the above suit itself will not be maintainable since the same is barred by res judicata in view of the judgment and decree in an earlier suit, O.S.No.15 of 1988 which was filed by the father of the present petitioners in respect of the suit property. Mr.Rajendran submits that the existence of a boundary dispute itself would have been justification for the Survey Superintendent to entertain the application and not for rejecting it. 4. Having considered the rival submissions addressed at the OP.N0.1819/01 -2- Bar, I am of the view that it will suffice if it is clarified that Ext.P7 will be subject to the outcome of O.S.80 of 1998. It will be open to the party-respondents to pursue all the contentions which they have raised including the contention that the suit is barred by res judicata, in O.S.80 of 1998. It is made clear that this Court has not expressed any opinion about the maintainability of O.S.80 of 1998 or the merits of the claim in that suit. The Original Petition will stand disposed of directing that Ext.P7 will be subject to the outcome of O.S.80 of 1998. Once the judgment of the court is available, the Survey Superintendent will do the needful on the basis of an application to be submitted by the petitioners producing copy of the judgment. No costs. (PIUS C.KURIAKOSE, JUDGE) tgl OP.N0.1819/01 -3- OP.N0.1819/01 -4-