IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 OP(C).No. 959 of 2011(O) AGAINST THE ORDER DATED 23/12/2010 IN O.P.(TRANSFER) NO.437/2010 OF THE DISTRICT COURT, KOZHIKODE PETITIONER --------------------- MADHUVANI, AGED 57 YEARS, W/O. RAJAN, PARAPPURATH HOUSE, KURUVATTOOR AMSOM, POLOOR DESOM, KOZHIKODE TALUK. BY ADV. SRI.NIRMAL. S RESPONDENTS: --------------- 1. A.PRABHAVATHI, AGED 53 YEARS, D/O. PACHUKUTTY (LATE), BHAVATHIKAVE @ NADUVILAKANDY PARAMBU, KURUVATTOOR AMSOM, KOZHIKODE TALUK- 673 001. 2. SAJIKUMAR K.V., AGED 36 YEARS, S/O.RAGHAVAN NAMBIAR, BHAVATHIKAVE @ NADUVILAKANDY PARAMBU, KURUVATTOOR AMSOM, KOZHIKODE TALUK-673 001. 3. SUJITH, AGED 35 YEARS, S/O. VIJAYAN, BHAVATHIKAVE @ NADUVILAKANDY PARAMBU, KURUVATTOOR AMSOM, KOZHIKODE TALUK-673 001. 4. SAROJINI AMMA, AGED 60 YEARS, W/O.MADHAVAN NAIR, BHAVATHIKAVE @ NADUVILAKANDY PARAMBU, KURUVATTOOR AMSOM, KOZHIKODE TALUK-673 001. 5. RADHAKRISHNAN, S/O. SAROJINI AMMA, UNIKOCHAMPARAMBA, BHAVATHIKAVE @ NADUVILAKANDY PARAMBU, KURUVATTOOR AMSOM, KOZHIKODE TALUK-673 001. 6. AKHILESH, AGED 32 YEARS, S/O. SAROJINI AMMA, UNIKOCHAMPARAMBA, BHAVATHIKAVE @ NADUVILAKANDY PARAMBU, KURUVATTOOR AMSOM, KOZHIKODE TALUK-673 001. 7. PRAKASH BABU, AGED 65 YEARS, S/O.M.C.KELU, MADATHIL CHITTAMMAL HOUSE, THIRUVANGA AMSOM, THALASSERY-670 101. :: 2 :: 8. EKANATH, AGED 43 YEARS, S/O. BHARATHAN, PARAPPURATH HOUSE, NEAR NORTH POLUR A.L.P.SCHOOL, KURUVATTOOR AMSOM, KOZHIKODE TALUK-673 001. 9. VIJAYAN, AGED 62 YEARS, S/O.PEEDIKAKANDI KUMARAN, AKKINARY HOUSE, KURUVATTOOR AMSOM, CHERUATTA, KOZHIKODE TALUK-673 001. 10. BIJU, AGED 38 YEARS, S/O. VIJAYAN, SURYA, VAYALARI THAZHAM, KURUVATTOOR AMSOM, CHERUATTA, KOZHIKODE TALUK-673 001. 11. DEVI, W/O. LATE BHARATHAN, PARAPPURATH HOUSE, NEAR NORTH POLUR A.L.P.SCHOOL, KOZHIKODE TALUK-673 001. 12. BIJUNATH, S/O. LATE BHARATHAN, PARAPPURATH HOUSE, NEAR NORTH POLUR A.L.P.SCHOOL, KOZHIKODE TALUK-673 001. R1 TO R3, R7, R9 & R10 BY ADVS.M/S.K.M.FIROZ AND SHAJNA FIROZ THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 959 OF 2011 O ------------------------------------------------------ Dated this the 4th day of April, 2011 JUDGMENT The petitioner filed O.P.(Transfer) No.437 of 2010 before the District Court, Kozhikode to transfer O.S.Nos.209 of 2005 and 211 of 2005 pending before the Principal Munsiff's Court, Kozhikode to the I Additional Sub Court, Kozhikode where O.S.No.595 of 2010 is pending. The District Court dismissed the application by Ext.P3 order dated 23.12.2010, which is under challenge in this Original Petition. 2. O.S.No.209 of 2005 was filed by respondents 1, 2 and 7 herein against respondents 4, 5, 6, 8 and 11 for permanent prohibitory injunction in respect of the plaint 'B' schedule pathway. The petitioner is not a party to O.S.No.209 of 2005. O.S.No.211 of 2005 was filed by the petitioner against the plaintiffs in O.S.No.209 of 2005 and others for permanent prohibitory injunction. In O.S.No.211 of 2005, the petitioner contended that the width of the pathway is not as claimed by the plaintiffs in O.S.No.209 of 2005 and that it is much lesser. O.P.(C) NO.959 OF 2011 :: 2 :: 3. In O.S.No.209 of 2005 an interim order of mandatory injunction was passed by the trial court to remove the obstruction caused to the pathway and that order was challenged by the petitioner in C.M.Appeal, which was dismissed. Against the judgment in the C.M.Appeal, the petitioner filed W.P.(C) No.1479 of 2008 before this Court. While disposing of W.P.(C) No.1479 of 2008, this Court directed joint trial of O.S.Nos.209 and 211 of 2005. 4. Thereafter, the petitioner filed O.S.No.595 of 2010 on the file of the I Additional Sub Court, Kozhikode for declaration of title and for fixation of boundary. In O.S.No.595 of 2010, respondents 1, 2 and 7 and others are parties. 5. All the aforesaid three suits are pending. The petitioner filed O.P.(Transfer) No.437 of 2010 praying for transfer of the two suits pending before the Principal Munsiff's Court, Kozhikode to the I Additional Sub Court, Kozhikode for joint trial with O.S.No.595 of 2010. The court below held that in O.S.No.211 of 2005 only the question of possession is relevant, while in O.S.No.595 of 2010 the question of title is to be gone into. It was therefore held that even if O.P.(C) NO.959 OF 2011 :: 3 :: O.S.Nos.211 of 2005 and O.S.No.595 of 2010 are tried separately, there is no likelihood of arising conflicting decisions. It was also noticed by the court below that O.S.Nos.211 of 2005 and 209 of 2005 are ripe for trial and those cases were listed for trial. O.S.No.595 of 2010 was filed after five years of filing O.S.No.211 of 2005. It was also noticed by the court below that the title of the plaintiff was disputed by the defendants in O.S.No.211 of 2005 in the year 2005 itself and still the petitioner did not think it fit to file a suit immediately thereafter. On these grounds the court below held that it is not necessary to transfer the two suits pending before the Court of the Principal Munsiff, Kozhikode to the I Additional Sub Court, Kozhikode. Cogent reasons have been stated by the court below for denying transfer. The order passed by the court below does not call for any interference. There is no jurisdictional error or error of law warranting interference. 6. For the aforesaid reasons, the Original Petition is dismissed. Learned counsel for the petitioner submitted that some of the observations made by the court below would cause prejudice to the O.P.(C) NO.959 OF 2011 :: 4 :: petitioner at the trial of the suits. It is made clear that the findings and observations made by the court below were intended for considering the question of transfer and those findings and observations are not findings and observations in the suits; and the suits shall be disposed of untrammelled by any of the observations contained in the order. (K.T.SANKARAN) Judge ahz/