IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 OP(C).No. 2276 of 2011(O) ------------------------ OS.330/1999 of SUB COURT, NEYYATTINKARA ................... PETITIONER : ------------------- KABEER, S/O.ABDUL KHADER, FARHAN MANZIL, VANIKER THERUVU, THALAYIL DESOM, ATHIYANNOR VILLAGE. BY ADVS. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENT : ---------------------- HALID, S/O.MOIDEEN KANNU, UDAYA HOUSE, VADAKKEVILA, BALARAMAPURAM, PALLICHAL DESOM. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 2276 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF PLAINT. EXT.P2 : COPY OF WRITTEN STATEMENT. EXT.P3 : COPY OF PETITION. EXT.P4 : COPY OF THE I.A. NO. 839/2011. EXT.P5 : COPY OF THE ORDER. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P. JOSEPH, J. = = = = = = = = = = = = OP(C).No.2276 of 2011. = = = = = = = = = = = = Dated this the 15th July, 2011. J U D G M E N T Petitioner is the defendant in OS.No.330 of 2009 of the court of learned Sub Judge, Neyyattinkara. That is a suit for eviction of petitioner from plaint B schedule room filed by the respondent on the strength of his title. Respondent claimed that plaint A schedule which takes in plaint B schedule room was purchased from one Sirajudeen from whom respondent purchased it as per Sale Deed dated 3.10.2008. According to the respondent, petitioner is a tenant having taken the room for rent from the said Sirajudeen. Petitioner contended that plaint B schedule does not form part of plaint A schedule and that plaint B schedule is part of Government poramboke. While so, petitioner filed two applications – IA.Nos.838 & 839 of 2011, one for appointment of an Advocate Commissioner with Surveyor and the other, to amend the written statement to OP(C).No.2276/2011. 2 incorporate an additional contention regarding title of petitioner over the property. Learned Sub Judge found both applications untenable and that intention of petitioner is only to protract the proceedings as the case is included in the special list and posted to trial on 21.7.2011. Learned Sub Judge observed that prima facie, contention of petitioner regarding title of respondent over plaint B schedule cannot be accepted since he had admitted that he had obtained plaint B schedule on tenancy from the predecessor in interest of the respondent. Learned counsel contended that appropriate plea has already been raised and that amendment is only to clarify the contention. It is contended that the National Highway Authorities have measured the property and found that B schedule shop is situated in Government land. 2. Learned Sub Judge has referred to the other litigations either between petitioner and respondent or between petitioner and the predecessor in interest of the OP(C).No.2276/2011. 3 respondent. They are OS.Nos.637 of 2008 and 924 of 2008. Petitioner sought decree for injunction against his forcible eviction from plaint B schedule. He claimed to have taken the room on rent from Sirajudeen, predecessor in interest of the respondent. It is while so, the present applications came and that too, at the fag end when the case was to be taken up for trial in the list on 21.7.2011. Learned Sub Judge has observed that in the application for amendment it is stated that Government is a necessary party but since respondent is not claiming relief against the Government, the court cannot compel the Government to be impleaded as a party. 3. Learned Sub Judge has also pointed out that if petitioner is desirous of proving lack of title of respondent over plaint B schedule based on the survey records, it is open to the petitioner to produce copy of report of the Advocate Commissioner in OS.No.942 of 2008 and prove the same. On going through the orders under challenge OP(C).No.2276/2011. 4 and hearing counsel, I am not inclined to think that the court below was not correct in dismissing the applications. 4. Learned counsel submitted that the Government has a rehabilitation scheme and if it is ultimately it is found that plaint B schedule is situated in Government poramboke, petitioner will be eligible for rehabilitation only if he is an occupant of the premises at the time of eviction. It is open to the petitioner to make appropriate claim before Government, if he is otherwise entitled to that course. Original Petition is dismissed as above. THOMAS P. JOSEPH, (Judge) Kvs/-