IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 27640 of 2011(D) --------------------------------------- PETITIONER(S): ----------------------- PODIYAN, S/O.NARAYANAN, AGED 66 YEARS, NARAYANA BHAVANAM, KALLUMALA P.O., MAVELIKKARA. BY ADV. SRI.LAVARAJ M.G. RESPONDENT(S): ------------------------- 1. BHARGAVI AMMA, W/O.NOT KNOWN AGED NOT KNOWN KADUVINAL PUTHENVEEDU, KAPPILMEKKU KRISHNAPURAM, ALAPPUZHA-690 502. 2. BHARATHI KUNJAMMA, KADUVINAL PUTHENVEEDU KAPPILMEKKU, KRISHNAPURAM, ALAPPUZHA-690 502. 3. BHASURA, KADUVINALTHARA, KAPPILMEKKU KRISHNAPURAM, ALAPPUZHA-690 502. 4. SURENDRANATH, VAISAKOM, KAPPILMEKKU KRISHNAPURAM, ALAPPUZHA-690 502. 5. SUB INSPECTOR OF POLICE, KAYAMKULAM, KAYAMKULAM POLICE STATION-690 502. 6. CIRCLE INSPECTOR OF POLICE, KAYAMKULAM-690 502. 7. DISTRICT SUPERINTENDENT OF POLICE, ALAPPUZHA-690 001. * ADDL. R8 IMPLEADED ADDL. R8. THE TALUK SURVEYOR, KARTHIKAPALLY TALUK. * ADDL. R8 IS SUO-MOTU IMPLEADED AS PER ORDER DATED 19/10/2011. R1 TO R4 BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE, SRI.B.MURALEEDHARAN, SRI.P.GOPAL. R5 TO ADDL.R8 BY SR. GOVT. PLEADER MR.M.K. ABOOBACKER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 27640 of 2011(D) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE CERTIFICATE OF SALE OF IMMOVABLE PROPERTY ISSUED BY THE HONOURABLE DEBTS RECOVERY TRIBUNAL DT.31/5/10. EXHIBIT P2: TRUE COPY OF THE ORDER OF DELIVERY OF IMMOVABLE PROPERTY TO CERTIFIED PURCHASER ISSUED BY THE HONOURABLE DEBTS RECOVERY TRIBUNAL DT.27/6/2011. EXHIBIT P3: TRUE COPY OF THE TAX RECEIPT EVIDENCING THE PAYMENT OF TAX WITH RESPECT TO THE PROPERTY TAKEN IN AUCTION BY THE PETITIONER DT.21/6/2011. EXHIBIT P4: TRUE COPY OF THE INTIMATION ISSUED BY THE TALUK SURVEYOR TO THE PETITIONER WITH RESPECT TO THE MEASUREMENT OF THE PROPERTY PURCHASED BY THE PETITIONER IN AUCTION DT.4/5/11. RESPONDENT'S EXHIBITS:- EXT.R4A: COPY OF THE PARTITION DEED NO.4075/1977 DATED 15/12/1977 OF THE SUB REGISTRAR'S OFFICE, KAYAMKULAM. EXT.R4B: COPY OF THE SALE DEED NO.1058/1998 DATED 12/05/1998 OF THE SUB REGISTRAR'S OFFICE, KAYAMKULAM. EXT.R4C: COPY OF THE ROUGH SKETCH SHOWING THE LIE OF THE MOOLASTHANAM OF THE TEMPLE AND THE PROPERTY PURCHASED BY THE PETITIONER. EXT.R4D: COPY OF THE WRITTEN SUBMISSION DATED 22/06/2011 SUBMITTED BY THE JOINT SECRETARY OF THE KADUVINAL KUDUMBA TRUST BEFORE THE REVENUE DIVISIONAL OFFICER, CHENGANNUR. //TRUE COPY// P.S. TO JUDGE rs PIUS C. KURIAKOSE & K. HARILAL,JJ. .................................................................... W.P.(C).NO.27640 OF 2011 ................................................................... Dated this the 24th day of November, 2011. JUDGMENT Pius C. Kuriakose, J. The petitioner who is the purchaser of 90 cents of land in a public auction conducted by the Debt Recovery Tribunal complains that despite Ext.P1 sale certificate issued to him by the DRT, he is not permitted by the party respondents who were having some interest in the property covered by Ext.P1 in having measurement of the property conducted at the property correctly identified. 2. The Taluk Surveyor, Karthikappally taluk was impleaded as the additional 8th respondent. Respondents 1, 2 and 4 have filed a detailed counter affidavit wherein it is contended that they obstructed the measurement only because the petitioner insisted that extent of the property is 93 cents. Going by Ext.P1, the extent of the property in Ares is 37.60 which converted into cents will come to 93 cents. But it is shown clearly in Ext.P3 itself that actually the extent is only 90 cents. If the petitioner is content with 90 W.P.(C).NO.27640 OF 2011 : 2 : cents, most of the objections will be withdrawn. It is further contended by the party respondents that the writ petition is bad for non joinder of Kaduvinal Kudumbam Trust represented by Sri. Sree Hari, the Joint Secretary. The Kudumbam is maintaining a temple in the family property and if the measurement is to be proper, it is necessary that the Joint Secretary of Koduvinal Kudumba Trust is also given notice. 3. We have heard the submissions of Sri. Lavaraj – learned counsel for the petitioner, P. Gopal- learned counsel for respondents 1, 2 and 4 and Sri. M.K. Aboobacker- learned senior Government Pleader for the police officers and the additional 8th respondent. Sri. M.K. Aboobacker submitted that the Taluk Surveyor was unable to conduct measurement due to non co-operation from respondents 1, 2 and 4. It was submitted that notice was served on Bhargavi Kunhamma- not a party to the writ petition as it was known that she is the President of Kaduvinal Kudumba Temple. But Bhargavi Kunhamma filed objections opposing the measurement. Sri. Lavaraj -learned counsel for the petitioner W.P.(C).NO.27640 OF 2011 : 3 : submitted that the petitioner will be satisfied with 90 cents of property which is the subject matter of Ext.P1 and will not capitalize on the extent of the property shown in Ares in Ext.P1. 4. Having considered the rival submissions addressed at the bar, we are of the view that the petitioner can be given relief to the extent of having the property which was conveyed to him by the DRT and in respect of which Ext.P1 certificate and Ext.P2 delivery report is issued, measured and identified by the 8th respondent. We direct the additional 8th respondent to conduct measurement of the properties covered by Exts.P1 and P2 taking the correct extent to be 90 cents only. The measurement shall be conducted with notice to the petitioner, respondents 1 to 4 and also to Sri. Sree Hari - the Joint Secretary of Kaduvinal Kudumba Trust. If the additional 8th respondent come across any obstruction from any of the party respondents 1 to 4 for anybody else, he shall immediately report the matter to the 5th respondent - Sub Inspector of Police, who shall on receiving information, render adequate protection to the additional 8th respondent W.P.(C).NO.27640 OF 2011 : 4 : for conducting the measurement. On the basis of the measurement conducted, the additional 8th respondent shall prepare a plan, copies of which will be given to the petitioner as well as to the party respondents in the writ petition. If any party is aggrieved, it is open to them to have their remedies against the measurement obtained in accordance with law. It is open to either parties to go in for a regular suit for fixation of the boundaries. PIUS C. KURIAKOSE, JUDGE. K. HARILAL, JUDGE. cl