IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WP(C).No. 31018 of 2009(O) -------------------------- OS.1056/1990 of II ADDL.M.C., ERNAKULAM .................... PETITIONER(S): --------------- 1. WILLIAM DIAS, S/O.LATE R.S.DIAS, RESIDING AT CC 40/4320, MARKET ROAD, ERNAKULAM. 2. MARY DIAS, D/O. DO., ADVOCATE, IN DO. DO. 3. RITA CORREYA, D/O.DO. & W/O.ANDREW CORREYA, RESIDING AT AMBAT HOUSE, CORREYA ROAD, PACHALAM, ERNAKULAM. 4. HARRIET CORREYA, D/O. DO. & W/O.NELSON CORREYA, RESIDING AT CONVENT JUNCTION, MANJUMMAL, UDYOGAMANDAL. 5. SAROJA, W/O.LATE SIMON DIAS, RESIDING AT 40/4570, MARKET ROAD, ERNAKULAM. 6. SYNDIA DIAS, D/O.DO., RESIDING IN DO. DO. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): --------------- 1. JOSEPHKUTTY, S/O.PAILY, RESIDING AT CC 40/4322, WEST OF MARKERT ROAD, ERNAKULAM. 2. PAPPACHAN, S/O.DO. IN DO. DO. 3. SABU, S/O.ANTONY PERUMPILLY, RESIDING AT 40/4325, WEST OF MARKET ROAD, ERNAKULAM. WPC.31018/09 4. SAJU, S/O. DO., RESIDING AT DO.DO.DO. 5. KUNJAN, S/O. DO., RESIDING AT WEST OF MARKET ROAD, ERNAKULAM. 6. JOSEPH WINSON DIAS, S/O.LATE R.S.DIAS, EMPLOYED IN ARAMCO, RAO TANURA, SAUDI ARABIA. 7. THANKAMMA, W/O.LATE AUGUSTINE, RESIDING AT CC 40/4321, WESTERN SIDE OF THE MARKET ROAD, ERNAKULAM. 8. GEEMON, S/O. DO., RESIDING IN DO. DO. 9. GEEVAN, S/O.DO., RESIDING IN DO. DO. 10. JOSEPH, S/O.DO., RESIDING IN DO. DO. 11. SAJI, S/O. DO., RESIDING IN DO. DO. 12. GEEMOL, D/O.DO. RESIDING IN DO. DO. 13. ELSY, W/O.LATE MATHU ALIAS MATHO, RESIDING AT CC 40/4322, WESTERN SIDE OF THE MARKET ROAD, ERNAKULAM. 14. LINSY, D/O. DO., RESIDING IN DO. DO. 15. MARYKUTTY, D/O. DO., RESIDING IN DO.DO. 16. MARTIN, S/O. DO., RESIDING IN DO. DO. 17. PHILOMINA, D/O.DO, RESIDING IN DO. DO. 18. ROY, S/O. DO., RESIDING IN DO. DO. 19. MARTHA, W/O.LATE FRANCIS, RESIDING AT CC 40/4324, WESTERN SIDE OF THE MARKET ROAD, ERNAKULAM. 20. ANTONY ROBERT DIAS, S/O.LATE SIMON DIAS, RESIDING AT 40/4570, MARKET ROAD, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.31018 OF 2009 (O) ----------------------------------- Dated this the 2nd day of November, 2009 J U D G M E N T Petitioners are the plaintiffs in O.S.No.1056 of 1990 on the file of the Munsiff Court, Ernakulam. The above suit is for fixation of boundary and perpetual prohibitory injunction, and the respondents are the defendants. Two applications were moved by the plaintiffs for amending the plaint. Ext.P3 application was moved for amending the plaint to have an additional relief of recovery of possession alleging that the defendants have encroached upon certain portions of the plaint property beyond their kudikidappu. To that application, the defendants filed Ext.P4 counter affidavit. Another amendment application was filed by the plaintiffs to carry out some modifications and alterations with respect to the relief column in the plaint after deleting some statements made earlier. Ext.P5 is the copy of that application to which the defendants filed Ext.P7 counter. The learned Munsiff, after WPC.31018/09 2 considering both the applications together, under Ext.P8 order, permitted amendment only with respect to some extent canvassed in I.A.No.3207 of 2009, in paragraph 3A of the plaint, permitting alteration of the extent of the property and also the schedule description covered by 'B' schedule in the plaint. The rest of the amendment sought for in that application and also the amendment covered by the other application I.A.No.3554 of 2009 were turned down by the court below. Propriety and correctness of Ext.P8 order passed by the court below, to the extent the petitioners are aggrieved thereby is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioners. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. There was a reference to the Land Tribunal with respect to the claim of kudikidappu canvassed by the defendants and the WPC.31018/09 3 reference has been answered with the finding, according to the counsel. The order of the Land Tribunal and also the previous commission report prepared in the case would justify the claim of amendment now sought for by the plaintiffs, is the submission of the learned counsel. Perusing Ext.P8 order with reference to the submissions made by the counsel and also other exhibits tendered in the writ petition, I find that no interference with the order passed by the court below is called for by invoking the visitorial jurisdiction vested with this Court. Suit has been filed for fixation of boundary to demarcate the kudikidappu holding of the defendants. Whatever be the extent of land to which the defendants are entitled to as kudikidappu in common as inherited from their predecessor or separately in their individual capacity, through the intervention of the civil court, even if a finding has been given by the Land Tribunal in the suit on the question of kudikidappu on a reference, whether demarcating of kudikidappu holding fixing its boundaries is permissible, is a serious question that requires to be taken note of and considered. Questions including identification of the WPC.31018/09 4 kudikidappu holding so long as it has not been determined by the Land Tribunal, is outside the purview of the civil court in view of the mandatory provisions covered by the Land Reforms Act. Further more, with respect to the recovery of possession sought for by the plaintiffs, that too, in a suit filed nearly two decades ago, other questions as to what are the contentions raised by the defendants in the written statement already filed and also their challenges to the suit claim deserve to be taken note of. I find no interference with Ext.P8 common order passed by the court below, in the given facts of the case, is called for. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp