Allowed

R.v.Vijayabose v. Surabhy and Ors.

Kerala HC19 Feb 2009WA/350/2009

Case brief

AI extract

What is this about?

The High Court allowed this writ appeal filed by a person not originally a party. It set aside a writ petition order directing property demarcation because the petitioner concealed the pendency of another writ on the same subject and failed to include the aggrieved party. The court emphasized property disputes require civil suits.

What did the court decide?

The impugned judgment and proceedings pursuant thereto were set aside. A cost of Rs. 3,000/- was awarded to the appellant.

R.v.Vijayabose Vs Surabhy and Ors. — Land Acquisition | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI

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THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930

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WA.No. 350 of 2009(E) ------------------------------AGAINST THE JUDGEMENT IN W.P.(C).NO.21491/2008 DATED 17/07/2008 ....................

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APPELLANT/ NOT A PARTY IN THE W.P:

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----------------------------------------------------------

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R.V. VIJAYABOSE, AGED 45, S/O. RAJAYYAN, RITHUS, OLATHANNI, NEYYATINKARA.

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BY ADVS. MR.R.T.PRADEEP, MR.V.VIJULAL.

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RESPONDENTS/ PETITIONER AND RESPONDENTS 1 TO 3 IN W.P:

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----------------------------------------------------------------------------------------------

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1. SURABHY, W/O. SHAJI, ANUPAMA, VAZHOOR, NEYYATINKARA.P.O, THIRUVANANTHAPURAM.

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2. DISTRICT COLLECTOR, THIRUVANANTHAPURAM.

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3. SUPERINTENDENT (RE-SURVEY), RE-SURVEY OFFICE, THIRUVANANTHAPURAM.

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4. THE TAHSILDAR, NEYYATINKARA.

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R2 TO R4 BY GOVT. PLEADER SMT. K. MEERA, R1 BY ADV. MR. R. ANIL KUMAR.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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prv.

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J.B. Koshy,Ag.C.J. & V.Giri, J.

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W.A.No. 350 of 2009

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Dated this the 19^th day of February, 2009

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Judgment

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Koshy, Ag.C.J.

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This writ appeal is filed with permission by a person who is not a party to the writ petition. The writ petitioner earlier filed W.P.(C) No.13521 of 2008 wherein the appellant was respondent No.5 seeking direction to the Taluk Surveyor to survey and demarcate her property. That matter is under consideration in that case. Without disclosing the pendency of that writ petition, the petitioner thereafter filed this writ petition without making the aggrieved party as a respondent and obtained an innocuous order. The relief prayed for in both petitions were same. In effect, the prayer in both cases was to direct the Taluk Surveyor to measure and demarcate her property. In fact, if there is any property dispute, appropriate remedy is to file civil dispute. In any event, filing of writ petition without disclosing the pendency of the earlier petition and also without making the affected person in the party array has to be discouraged. Therefore, we set aside the impugned judgment and proceedings pursuant thereto. By demanding the property without deciding the civil dispute has no effect. If there is

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W.A.No.350/2009

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any civil dispute regarding the property, petitioner has to approach the civil court and get the property demarcated by getting appropriate directions from the court. In view of suppression of the material fact of pendency of another writ petition by her on the same subject, we award a cost of Rs.3,000/- to be paid by the petitioner who is respondent No.1 in the appeal to the appellant. However, we make it clear that any observation in this judgment shall not affect disposal of the earlier writ petition. The question whether petitioner owns 17.5 cents or 20 cents of land in partition etc. can be decided only in a civil suit.

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The writ appeal is allowed.

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J.B.Koshy Acting Chief Justice

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V. Giri

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Judge

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vaa

R.v.Vijayabose v. Surabhy and Ors.

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R.v.Vijayabose v. Surabhy and Ors.

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