IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 OP.No. 14866 of 2003(T) ----------------------- PETITIONERS: ---------------- 1. PANKAJAKSHI, AGED 60 YEARS, W/O. LATE SREEDHARAN, CHERUMUTTATHU VEEDU, KALLUMEDU, KUMILY VILLAGE. 2. UTHAMAN SREEDHARAN S/O. LATE SREEDHARAN, CHERUMUTTATHU VEEDU, KALLUMEDU, KUMILY VILLAGE 3. SOLOMAN SREEDHARAN, S/O. LATE SREEDHARAN CHERUMUTTATHU VEEDU, KALLUMEDU, KUMILY VILLAGE. BY ADV. SRI.VIJU ABRAHAM RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. THE DISTRICT COLLECTOR, COLLECTORATE, IDUKKI 3. TAHASILDAR, TALUK OFFICE, PEERUMEDE 4. TALUK SURVEYOR, TALUK OFFICE, PEERUMEDE 5. SYAMALA SHUBA CHANDRAN, W/O. SBUBACHANDRAN, T.P. VII/208, NEDERON, KOVALOM P.O., THIRUVANANTHAPURAM BY GOVERNMENT PLEADER SRI. P.N. SANTHOSH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 14866 of 2003 ORDER IN C.M.P.NO.24866 OF 2003 IN O.P.NO.14866 OF 2003 DISMISSED. 26.5.2008 SD/- S. SIRI JAGAN, JUDGE. EXT.P1: COPY OF DOCUMENT NO.42/84 DTD 19.1.84 OF S.R.O. PEERUMEDE. EXT.P2: COPY OF PATTA DTD 28.5.71 ISSUED BY LAND ASSIGNMENT SPECIAL TAHASILDAR PEERUMEDE IN L.A. CASE NO.728/65. EXT.P3: COPY OF EXT.P2. EXT.P4: COPY OF EXTRACT OF BUILDING TAX ASSESSMENT REGISTER OF KUMILY PANCHAYAT ISSUED BY THE SECRETARY, KUMILY GRAMA PANCHAYAT, FOR THE PERIOD 78-79 TO 82-83. EXT.P5: COPY OF EXTRACT OF THE -DO- ISSUED BY -DO- FOR THE PERIOD 93-94. EXT.P6: COPY OF TAX RECEIPT NO.90 FOR THE YEAR 2000-2001 ISSUED TO THE 3RD PETITIONER. EXT.P7: COPY OF TAX RECEIPT NO.81604 FOR THE YEAR 2001-2002 ISSUED TO -DO- EXT.P8: COPY OF JUDGMENT DT. 22.6.87 IN O.S.191/86 OF THE COURT OF THE MUNSIFF, IDUKKI. EXT.P9: COPY OF NOTICE NO.D2-2185/85 DTD 23.10.2000 ISSUED BY R3 TO THE PETITIONERS AND ALL OTHER LEGAL HEIRS. EXT.P10: COPY OF JUDGMENT DTD 7.11.2000 IN O.P.NO.31209 OF 2000- OF THIS HON'BLE HIGH COURT. EXT.P11: COPY OF ORDER DTD 25.11.2000 IN COMPLAINT NO.97/2000 OF THE KERALA LOK AYUKTA. EXT.P12: COPY OF ORDER NO.D2-2185/85 DTD 24.4.2002 ISSUED BY R3. EXT.P13: COPY OF JUDGMENT DT. 10.4.02 IN O.P.NO.710/2002(H) OF THIS HON'BLE COURT. EXT.P14: COPY OF JUDGMENT DTD 11.3.1988 IN O.S.224/86 OF THE COURT OF THE MUNSIFF, IDUKKI. EXT.P15: COPY OF THE PLAN SHOWING SURVEY NUMBERS SY. NO.255 AND SY. NO.87/1. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.14866 OF 2003 ---------------------------------------- Dated this the 26th day of May, 2008 JUDGMENT The petitioners are the legal heirs of late Sri. C.K. Sreedharan. The said C.K. Sreedharan purchased 74 cents in Survey No.87/1 in Periyar Village from one Sri. Kunjan Raghavan as per Ext.P1 sale deed. The said Kunjan Raghavan obtained the property by Ext.P2 patta dated 28.5.1971 issued by the Special Tahsildar, Peerumedu. Thereafter the said Kunjan Raghavan constructed a building thereon in respect of which Exts.P4 and P5 Building Tax Assessments were made. The basic tax has been paid by the 3rd petitioner for the property in which the pattadar is shown as Kunjan Raghavan as evidenced by EXts.P6 and P7 tax receipts. Earlier, the said Sri. C.K.Sreedharn had filed a suit against one Subhachandran and Shyamala (the 5th respondent herein) for injunction in respect of the property which was decreed by Ext.P8 judgment. While the matter was resting so, the petitioners received Ext.P9 notice directing them to vacate the property in Survey No.255/2 in favour of the 5th respondent, O.P.No.14866/03 2 pursuant to an order of the Kerala Lok Ayukta. The petitioners challenged the same in O.P.No.31209/2000 in which this Court by Ext.P10 judgment directed the petitioners to appear before the Lok Ayukta and to raise all his contentions there. Thereafter the 3rd petitioner appeared before the Lok Ayukta and the Lok Ayukta after hearing him also passed Ext.P11 judgment, in which there was a direction to the Deputy Director of Survey and Land Records, Idukki, to identify the property in Survey No.255/4 in the said Village and restore possession of that property to the 5th respondent. According to the petitioners without the identification as directed, Ext.P12 order has again been passed directing the 2nd petitioner to vacate the property in favour of the 5th respondent. Ext.P12 is under challenge before me. 2. The contention of the petitioners is that as is evidenced by the documents produced by them, the property which is in Sy. No.87/1 belongs absolutely to the legal heirs of late Sri. C.K. Sreedharan, who is the successor in interest of the original pattadar namely, Kunjan Raghavan and the property allegedly belonging to the 5th respondent is some other property in Survey No.255/2. The petitioners also O.P.No.14866/03 3 submit that in fact there was an earlier judgment by the MUnsiff Court, Idukki in the matter (Ext.P14) which also would go to support the petitioners’ case. 3. The petitioners therefore, seek the following reliefs: “i) a writ of certiorari or other appropriate writ or order quashing Exhibit-P12 notice issued by the 3rd respondent as illegal and inoperative. ii) to declare that the petitioners and other co- owners of the property covered by Exhibit-P1 sale deed is not liable to be evicted from their property as proposed in Exhibit-P12 notice of the 3rd respondent; iii) a writ of mandamus or other appropriate writ or order directing the 3rd respondent to abstain from taking any action in furtherance of Exhibit-P12 notice. iv) to pass an interim order staying Exhibit-P12 notice of the 3rd respondent and all actions in furtherance of the same pending disposal of this Original Petition.” 4. No counter affidavit has been filed. Notice has been received by the 5th respondent. But the 5th respondent has not chosen to appear and contest the matter before this Court. From the documents produced by the petitioners, it is evident that the petitioners are owners of 74 cents in Survey No.87/1. It is also clear that the claim of the 5th respondent is in respect of the property in Survey No.255/2. Apparently there is some mistake in identity of the properties belonging to the 5th respondent which has resulted in this imbroglio. In fact, in O.P.No.14866/03 4 O.S.NO.191/86, in which Ext.P8 judgment has been passed, the 5th respondent was also a party in which the petitioner has obtained an injunction against the 5th respondent and her husband in respect of the property in Sy.No.87/1. From all the documents produced before me, it is quite clear that the property owned and possessed by the petitioners is in Survey No.87/1 and not in 255/2. Therefore, it is clear that the petitioners are not liable to vacate the property in favour of the 5th respondent whose claim is only in respect of the property in Survey No.255/2. Therefore, it is declared that the property now in possession of the petitioners cannot be proceeded against in respect of the claim made by the 5th respondent for re-conveyance of certain properties of hers which was earlier attached by the Government. In the above circumstances, I declare that pursuant to Ext.P12 order, the property of the petitioners is not liable to be proceeded against. The original petition is allowed as above. S. SIRI JAGAN, JUDGE Acd O.P.No.14866/03 5