IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 WP(C).No. 30095 of 2003(G) ---------------------------------------- PETITIONER(S): ------------------- K.C.PREETHA, W/O.SIDHARATHAN, KUTTIYIL HOUSE, WEST HILL, CALICUT-5. BY SMT.V.P.SEEMANDINI, SENIOR ADVOCATE BY ADVS. SMT.VEENA.B.KUMAR SMT.GAYATHRI VIJAYAN RESPONDENT(S): ------------------------ 1. SUPERINTENDENT OF SURVEY AND LAND RECORDS, COLLECTORATE, KOZHIKODE. 2. TAHSILDAR, TALUK OFFICE, KOZHIKODE. 3. MR.RADHAKRISHNAN, ASSISTANT SURVEY SUPERINTENDENT, COLLECTORATE KOZHIKODE. 4. C.DEVAYANI, 1/4252. N.K.NIVAS, PEOPLES ROAD, CALICUT-5. R1 & R2 BY GOVT. PLEADER SRI.M.A.ASIF ADV. SRI.BABU JOSEPH KURUVATHAZHA FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30095/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SURVEY SKETCH SHOWING THE PROPERTIES COVERED BY THE PARTITION DEED DT. 14.3.1997. P2:- COPY OF THE CERTIFICATE DTD. 11.1.79 ISSUED BY THE LAND TRIBUNAL IN FAVOUR OF LATE KUMARAN FOR 80.23 CENTS OF LAND. P3:- COPY OF THE FORM NO.12 ISSUED BY THE 2ND RESPONDENT DTD. 4.9.00. P4:- COPY OF THE REPRESENTATION DTD. 19.9.00 SUBMITTED BEFORE THE 2ND RESPONDENT. P5:- COPY OF THE NOTICE DTD. 13.3.02 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P6:- COPY OF THE APPEAL DTD. 24.3.02 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P7:- COPY OF THE LETTER DTD. 20.12.02 RECEIVED BY THE PETITIONER FROM THE 2ND RESPONDENT. P8:- COPY OF THE JUDGMENT DTD. 22.5.03 IN OP. 15663/03, OF THIS HONOURABLE COURT. P9:- COPY OF THE NOTICE DTD. 18.8.03 SENT BY THE PETITIONER'S COUNSEL. P10:- COPY OF THE ORDER DTD. 28.6.03 ISSUED BY THE IST RESPONDENT. TRUE COPY P.A.TO JUDGE S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 30095 of 2003 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of July, 2010 J U D G M E N T The petitioner obtained 56.500 cents in survey No.1082 of Kachery Village in Kozhikode Taluk by partition. The same was part of the properties obtained by the uncle of the petitioner by Ext.P2 Certificate of Purchase, which was partitioned by partition deed dated 14.03.1997, by which the said property was allotted to the share of the petitioner. One of the properties lying adjacent to the petitioner's property is the property of the 4th respondent in survey No.1079. Petitioner alleges that, the 4th respondent constructed a car shed abutting the southern corner of the eastern boundary wall of the petitioner's property. She further submits that, in order to make way to the car shed through the petitioner's property, the 4th respondent with the connivance of the 3rd respondent fabricated a survey report and filed an application to point out the boundaries W.P.(C)No. 30095 of 2003 -2- of her properties. The petitioner alleges that the husband of the 4th respondent is a close friend of the 3rd respondent, who was the Assistant Survey Superintendent. Ext.P3 notice was issued to the petitioner. Pursuant to Ext.P3, properties were measured. The petitioner filed representation for measuring the whole property for fixing the boundaries in view of the fact that as is revealed from Ext.P1 sketch of the properties in the neighborhood, several other properties would also be involved and without measuring those properties boundaries cannot be correctly fixed. But without heeding to the request of the petitioner, Ext.P5 notice was issued to the petitioner stating that the boundaries have been fixed as per which the boundary between the properties of the petitioner and the 4th respondent was fixed inside the compound wall of the petitioner. Against Ext.P5, the petitioner filed an appeal. Despite the protestations of the petitioner, Ext.P10 order has been passed dismissing the petitioner's appeal. It is under the above circumstances, the petitioner has filed this W.P.(C)No. 30095 of 2003 -3- writ petition seeking the following reliefs: “a) To issue a writ of certiorari or other appropriate writ order of direction to quash Ext.P5 & P10. Since the same are vitiated by malafide and irrelevant consideration. b) To issue a writ of certiorari or other appropriate, writ order or direction to quash Ext.P5 & P10 since the same are issued inviolation of the petitioners Fundamental Rights under Article 14 of the constitution. c) To issue a writ of mandamus or other appropriate order or direction directing the 1st respondent to refix the survey point of the 4th respondent property only on the basis of the survey plan & Revenue map after measuring the petitioner's property also without the help of survey from outside.” 2. Although there is appearance on behalf of the 4th respondent, the 4th respondent has not chosen to file any counter affidavit. The 1st respondent has filed a counter affidavit supporting the impugned order. 3. I have considered the rival contentions in detail. 4. The petitioner contends that, the property of the petitioner in Survey No.1082 is surrounded by compound walls on all sides including the boundary between the petitioner's property and the 4th respondent's property. The 4th respondent has not chosen to dispute the same by filing a counter affidavit. That being so, the petitioner is in W.P.(C)No. 30095 of 2003 -4- possession of the entire properties surrounded by the compound wall. Petitioner cannot be dispossessed from that property except under due process of law. The petitioner alleges that, the respondents 1 to 3 have measured only the property of the 4th respondent. If that is correct, then that would not have been the correct way of deciding the boundaries especially other properties are also involved. Consequently before fixing the boundaries of the property of the 4th respondent all the surrounding properties should have been measured. In the above circumstances, the 4th respondent cannot dispossess the petitioner except by resort to due process of law. If the 4th respondent embarks on such a process it would be open to the petitioner to resist the same by taking the contention that, the measurement made is not correctly made and the boundaries fixed are not correctly fixed among other contentions available to her under law. For taking such a contention, Ext.P3 Forum 12 Notice under the Kerala Survey & Boundaries Act, 1961, Ext.P5 order or Ext.P10 W.P.(C)No. 30095 of 2003 -5- appellate order would not stand in the way. With the above clarifications this writ petition is disposed of. S. SIRI JAGAN JUDGE shg/