Mary V. Kumar vs Tahsildar (L.R.)
2022 Latest Caselaw 720 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943

                                 WP(C) NO. 5911 OF 2021

PETITIONER:

               MARY V. KUMAR
               W/O. VIJAYAKUMAR, CHIRAYIL HOUSE, ERUMATHALA KARA, ASOKAPURAM
               P. O., ERNAKULAM DISTRICT.

               BY ADVS.
               K.G.CLEETUS
               SRI.PETERLAL



RESPONDENTS:

     1         TAHSILDAR (L.R.)
               OFFICE OF THE KANAYANNOOR TALUK, ERNAKULAM, KOCHI - 682011.

     2         TALUK SURVEYOR
               KANAYANNOOR TALUK, ERNAKULAM, KOCHI - 682011.

     3         M. A. AUGUSTINE
               S/O. ANTHONY, MADATHIPARAMBIL HOUSE, KCK ROAD, CHITTOOR FERRY,
               CHITTOOR P. O. (SOUTH), PIN - 682 027.

     4         VINSON M. A.
               S/O. ANTHONY, MADATHIPARAMBIL HOUSE, KCK ROAD, CHITTOOR FERRY,
               CHITTOOR P. O. (SOUTH), PIN - 682 027.

               BY ADV SRI.K.M.VARGHESE



               SMT.M.ANIMA.G.P.




      THIS     WRIT   PETITION     (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON

17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                       2



W.P.(C)No. 5911 of 2021




                             JUDGMENT

Dated this the 17th day of January, 2022.

The petitioner has approached this Court seeking

that her application made in Form No.10 of the Kerala

Survey and Boundaries Act, 1961, namely Ext.P10, be

directed to be disposed of by respondents 1 and 2, within

a time frame to be fixed by this Court.

2. The afore request made on behalf of the

petitioner by her learned counsel - Sri.K.G.Cleetus, were

answered by Sri.K.M.Varghese - learned counsel

appearing for respondents 3 and 4, saying that, pending

this lis, father of the parties died and that, therefore, his

clients have preferred O.S.No.966 of 2021 before the

Munsiff's Court, Ernakulam, seeking partition of various

properties - including the one which is now claimed by

W.P.(C)No. 5911 of 2021

the petitioner. He submitted that, therefore, pending

such a partition suit, no exercise, as has been prayed by

the petitioner through Ext.P10, may be done because it

will certainly intervene with the judicial process.

3. On hearing Sri.K.M.Varghese as afore and

noticing the specific averments in the counter affidavit

filed by respondents 3 and 4, I asked Sri.K.G.Cleetus as

to why his client should now pursue with this writ

petition, when she can approach the Civil Court and seek

orders, particularly because the principles of lis pendens

would apply as long as the suit is pending.

4. Sri.K.G.Cleetus, after deliberating upon the

afore, submitted that if this Court is so inclined, then his

client may be given liberty to approach the competent

Civil Court and seek measurement of the property which

is in her possession and ownership, because she has

W.P.(C)No. 5911 of 2021

already agreed to sell the same to a third party through

Ext.P9 agreement.

5. When I evaluate the afore submissions, it is

evident that at the time when this writ petition was filed,

the party respondents had not filed a civil suit for

partition of the properties in question. Now that, they

have done so, I am certainly of the opinion that a

measurement of the property or survey as requested in

Ext.P10, cannot be allowed except as per the orders of

the Civil Court.

6. Resultantly, it is indubitable that petitioner

must approach the Civil Court and seek appropriate

orders, which certainly shall be considered by it, in terms

of law.

For the afore reasons, I close this writ petition,

leaving full liberty to the petitioner to approach the Civil

W.P.(C)No. 5911 of 2021

Court, before which O.S.No.966 of 2021 is pending; for

which purpose, all her contentions are left open to be

considered by the said Court in terms of law, as and

when applications are made.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Raj/18.01.2022.

W.P.(C)No. 5911 of 2021

APPENDIX OF WP(C) 5911/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED NO.1684/2011 DATED 23.08.2011 EXECUTED FOR 3 CENTS.

EXHIBIT P2 TRUE COPY OF THE SETTLEMENT DEED NO.517/2018 DATED 22.12.2017 EXECUTED FOR 9 CENTS.

EXHIBIT P3 TRUE COPY OF THE CORRECTION DEED WAS EXECUTED IN SETTLEMENT DEED NO.517/2018 ON 08.02.2019 AS CORRECTION DEED No.247/2019.

EXHIBIT P4 TRUE COPY OF THE TAX RECEIPT DATED 17.08.2020 ISSUED BY THE VILLAGE OFFICER, KADAMAKUTY.

EXHIBIT P5 TRUE COPY OF THE TAX RECEIPT DATED 17.08.2020 ISSUED BY THE SPECIAL VILLAGE OFFICER, KADAMAKUTY.

EXHIBIT P6 TRUE COPY OF THE SURVEY SKETCH PREPARED BY THE SURVEYOR DURING THE EXECUTION OF SETTLEMENT DEEDS.

EXHIBIT P6(a) TRUE COPY OF THE SURVEY SKETCH PREPARED BY THE SURVEYOR DURING THE EXECUTION OF SETTLEMENT DEEDS.

EXHIBIT P7 TRUE COPY OF THE POSSESSION AND NON-

ATTACHMENT CERTIFICATE DATED 3.2.2018 IN RESPECT OF 3 CENTS CERTIFIED BY

W.P.(C)No. 5911 of 2021

VILLAGE OFFICER, KADAMAKUDY.

EXHIBIT P7(a) TRUE COPY OF THE POSSESSION AND NON-

ATTACHMENT CERTIFICATE DATED 6.6.2019 IN RESPECT OF 9 CENTS CERTIFIED BY VILLAGE OFFICER, KADAMAKUDY.

EXHIBIT P8 TRUE COPY OF THE LOCATION PLAN OF THE PETITIONER'S PROPERTY.

EXHIBIT P8(a) TRUE COPY OF THE LOCATION PLAN OF THE PETITIONER'S PROPERTY.

EXHIBIT P9 TRUE COPY OF THE AGREEMENT FOR SALE DATED 11.09.2020 EXECUTED BETWEEN ONE SEBASTIAN BIJU, CHERIYAKADAVIL, PIZHALA AND PETITIONER.

EXHIBIT P10 TRUE COPY OF THE FORM 10 APPLICATION DATED 29.12.2020 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P11 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, KADAMAKUDY DATED NIL.

EXHIBIT P12 TRUE COPY OF THE APPLICATION DATED 14.01.2021 SUBMITTED BY PETITIONER BEFORE THE DISTRICT COLLECTOR, ERNAKULAM.

EXHIBIT P13 TRUE COPY OF THE NOTICE DATED 10.02.2021 RECEIVED BY PETITIONER FROM THE TALUK SURVEYOR, KANAYANNUR TALUK.