B.Gopkumar vs Jacob Japa Singh
2022 Latest Caselaw 8451 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
  WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
                   OP(C) NO. 1129 OF 2022
     IN OS 8/2020 OF II ADDITIONAL SUB COURT,TRIVANDRUM


PETITIONER/NOT PARTY IN THE SUIT:

         B.GOPKUMAR,
         AGED 64 YEARS,
         SREEBHADRA, MRA D-22,
         MUKKOLA, NETTAYAM POST,
         THIRUVANANTHAPURAM, NOW RESIDING AT ARA 116 A3,
         AMBALAMUKKU MUTTADA ROAD,
         AMBALAMUKKU, THIRUVANANTHAPURAM,
         PIN - 695003

         BY ADV DEEPU LAL MOHAN



RESPONDENTS/ PLAINTIFF & DEFENDANTS1 TO 11 IN THE SUIT:

    1    JACOB JAPA SINGH,
         AGED 71 YEARS,
         TC 5/2385, CHERUKARI,
         KOWDIAR POST,
         THIRUVANANTHAPURAM,
         PIN - 695003

    2    M. K. SUDARSANAN,
         AGED 65 YEARS,
         S/O MADHAVAN VAIDYAR,
         TC 63/1680,
         CHIRAG NIVAS, AMBALATHARA,
         POONTHURA POST,
         THIRUVANANTHAPURAM,
         PIN - 695027

    3    CHIRAG TRUPTHI SUDARSANAN,
         AGED 32 YEARS,
         S/O M.K. SUDARSANAN, TC 63/1680,
         CHIRAG NIVAS, AMBALATHARA,
         POONTHURA POST,
         THIRUVANANTHAPURAM,
         PIN - 695027
 O.P.(C)No.1129/2022

                                -:2:-


      4       S. VENUGOPAL,
              AGED 56 YEARS,
              S/O SREEDHARAN NAIR,
              TC 26/140,
              NARAYANEEYAM, ILANJI LANE,
              PULIMOODU,
              STATUTE, THIRUVANANTHAPURAM,
              PIN - 695001

      5       P. PADMANABHAN PILLAI,
              AGED 81 YEARS,
              S/O PADMANABHA PILLAI,
              TC 73/1041,
              CHERUVILA LANE, CRAA-14A,
              ATTUKAL,
              MANACAUD POST,
              THIRUVANANTHAPURAM,
              PIN - 695009

      6       RAMKUMAR,
              AGED 52 YEARS,
              S/O RADHAKRISHNAN,
              TC 24/1845 (1), ELANGAM GARDENS,
              THYCAUD,
              THIRUVANANTHAPURAM,
              PIN - 695014

      7       RAJESWARI,
              AGED 46 YEARS,
              W/O RADHAKRISHNAN,
              TC 24/1845 (1), ELANGAM GARDENS,
              THYCAUD,
              THIRUVANANTHAPURAM,
              PIN - 695014

      8       RAJNARAYANAN,
              AGED 26 YEARS,
              S/O RADHAKRISHNAN,
              TC 24/1845 (1), ELANGAM GARDENS,
              THYCAUD,
              THIRUVANANTHAPURAM,
              PIN - 695014.
 O.P.(C)No.1129/2022

                                -:3:-


      9       N. RADHAKRISHNAN,
              AGED 23 YEARS,
              TC 24/1845 (1), ELANGAM GARDENS,
              THYCAUD, THIRUVANANTHAPURAM,
              PIN - 695014.

     10       N. RADHAKRISHNAN,
              AGED 23 YEARS,
              TC 24/1845 (1),
              ELANGAM GARDENS,
              THYCAUD,
              THIRUVANANTHAPURAM,
              PIN - 695014

     11       DR. A. INDIRAKUTTI,
              AGED 62 YEARS,
              D/O LATE ANANDAVALLI AMMA,
              KC 46/358, DRA-68,
              KAIKULANGARA NORTH,
              KACHERI JUNCTION KOLLAM,
              PIN - 691013

     12       DR. A. INDIRAKUTTI,
              AGED 62 YEARS,
              D/O LATE ANANDAVALLI AMMA,
              KC 46/358, DRA-68,
              KAIKULANGARA NORTH,
              KACHERI JUNCTION KOLLAM,
              PIN - 691013

     13       PADMINIKUTTI,
              AGED 60 YEARS,
              D/O LATE ANANDAVALLI AMMA,
              FLAT NO. 26, REGEN COURT,
              KURAVANKONAM, KOWDIAR,
              THIRUVANANTHAPURAM,
              PIN - 695003

     14       PADMINIKUTTI,
              AGED 60 YEARS
              D/O LATE ANANDAVALLI AMMA,
              FLAT NO. 26, REGEN COURT,
              KURAVANKONAM, KOWDIAR,
              THIRUVANANTHAPURAM,
              PIN - 695003
 O.P.(C)No.1129/2022

                                -:4:-


     15       DR. A. MALATHI,
              AGED 52 YEARS,
              D/O LATE ANANDAVALLI AMMA,
              LECTURER SCHOOL OF HUMANITIES,
              INDIRA GANDHI NATIONAL OPEN UNIVERSITY,
              MYTHAN DERHI, NEW DELHI, PIN - 110068



     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 O.P.(C)No.1129/2022

                                       -:5:-




                      Dated this the 6th day of July,2022

                            JUDGMENT

Assailing the order dated 30.03.2022 passed by

the Court of the IInd Additional Subordinate Judge,

Thiruvananthapuram, in I.A.No.7/2021 in

O.S.No.8/2020, this original petition is filed.

2. The petitioner's case, in the nutshell, relevant

for the determination of this original petition is that, he

is not a party in the above suit, which is filed by the

first respondent against the respondents 2 to 12, for

declaration of title, recovery of possession and other

ancillary reliefs. When the first respondent applied to

effect mutation of his property having an extent of 14

cents of land comprised in Survey No.1372 of

Vanchiyoor Village covered by Sale Deed No.3570/2017

of S.R.O. Thiruvananthapuram, the Village Officer

insisted that his property should be separated by a

compound wall. In the meantime, the O.P.(C)No.1129/2022

second respondent had filed W.P.(C)No.40409/2018

before this Court. This Court by Ext.P1 judgment dated

14.03.2019, disposed of the writ petition as follows:

"8. Thus based on the registered documents of the parties concerned necessary exercise shall be completed. However, if it is made clear that if in such exercise, it is found that the petitioner happened be in possession of such land belonging to the 4th Respondent that cannot be disturbed otherwise than through the Civil Court. The exercise shall be completed only for the purpose of transfer of registry as above if there is a serious dispute in regard to the possession, that shall be considered before considering the application. There shall be a direction to competent authority, who is notified as per Survey and Boundaries Act to demarcate the registered land of the petitioner and 4th respondent after adverting to their objections, complete the exercise within a period of two months. Thereupon appropriate decision shall be taken by the Tahsildar-3rd respondent based on the application submitted by the 4th respondent for effecting transfer of registry within a further period of one month."

2.1. Pursuant to Ext.P1 judgment, the Tahasildar

conducted an inspection and measurement of the

properties and has passed Ext.P2 order, observing that O.P.(C)No.1129/2022

the disputes between the parties can only be resolved

by a competent Civil Court. Accordingly, the first

respondent has instituted Ext.P3 plaint, seeking for

declaration of title over plaint 'A' scheduled property

and other ancillary reliefs. In Ext.P3, it is averred that

the petitioner had assigned the property in favour of

the first respondent. All parties to Ext.P3 are

registered holders of the property comprised in Survey

No.1372 (supra). The petitioner has inherited an

extent of 2.399 cents in Sy.No.1372 of Vanchiyoor

Village, from his mother, which is the residue left after

the assignment of 64.269 cents to different land

owners. Even though the petitioner approached the

Tahsildar and submitted Ext.P5 application, to

demarcate his property of 2.399 Cents, the same was

declined on the ground that the petitioner is not a

party to Exts.P1 or P2. The petitioner has now filed

W.P.(C)No.26144/2020 before this Court. Then, the O.P.(C)No.1129/2022

petitioner had filed Ext.P6 application to get himself

impleaded in the suit as an additional defendant. The

application was opposed by the respondents 1 to 3 who

had filed Exts.P7 and P8 written objections. The court

below, without adverting to the contentions raised by

the petitioner, has by the impugned Ext.P12 order,

dismissed Ext.P6 application. Ext.P12 order is

erroneous and wrong. Hence, the original petition.

3. Heard; Sri. Deepu Lal Mohan, the learned

counsel appearing for the petitioner.

4. Undisputedly, the first respondent has filed

Ext.P3 plaint, inter alia, seeking a declaration that he

is the absolute owner having right, title, interest and

possession over plaint 'A' scheduled property described

in Ext.P1. He has not sought for any relief against the

petitioner. The petitioner's grievance is that, as the

Revenue Authority has stated in Ext.P2 that the

disputes between the parties can only be resolved O.P.(C)No.1129/2022

through a competent Civil Court, the petitioner is also

a necessary party in Ext.P3 plaint.

5. The court below has rightly observed in

Ext.P12 that the first respondent/plaintiff is the

dominus litis of the suit, and he can decide against

whom he should seek for a relief.

Now, the petitioner has a case that the first

respondent has acquired his property through unlawful

means. So, he has an active role in Ext.P3. I am afraid

that the petitioner cannot agitate his cause in Ext.P3.

The remedy of the petitioner, if he has any subsisting

grievance against the first respondent, is to file an

independent suit and obtain an independent

declaration, instead of getting himself tagged in Ext.P3

plaint. The finding of the court below is justifiable and

correct. There is no ground made out by the petitioner

warranting interference with Ext.P12 order, by this

Court, under Article 227 of the Constitution of India. O.P.(C)No.1129/2022

Hence, without prejudice to the right of the petitioner

to work out his remedies in accordance with law, this

original petition is dismissed.

Sd/-

                                    C.S.DIAS,JUDGE

DST/06.07.22                                    //True copy//

                                                P.A.To Judge
 O.P.(C)No.1129/2022





                                APPENDIX

PETITIONER EXHIBITS
EXHIBIT P1     THE PHOTOCOPY OF JUDGMENT DATED 14-03-2019 OF

THIS HON'BLE COURT IN W.P.(C) NO. 40409/2018.

EXHIBIT P2 THE PHOTOCOPY OF ORDER NO. H4-25614/2018 DATED 29-06-2019 ISSUED BY THE TAHSILDAR (LAND REVENUE).

EXHIBIT P3 THE PHOTOCOPY OF THE PLAINT DATED 10-01-2020 IN O.S. NO. 8/2020 ON THE FILES OF II ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM.

EXHIBIT P4 THE PHOTOCOPY OF APPLICATION DATED 08-03-2019 SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR (LAND RECORDS), TALUK OFFICE, THIRUVANANTHAPURAM.

EXHIBIT P4(A) THE PHOTOCOPY OF LETTER NO. H5-10659/19 DATED 16-03-2019 ISSUED TO THE PETITIONER BY THE TAHSILDAR (LAND RECORDS), TALUK OFFICE, THIRUVANANTHAPURAM.

EXHIBIT P5 THE PHOTOCOPY OF LETTER DATED 10-04-2019 SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR (LAND RECORDS), TALUK OFFICE, THIRUVANANTHAPURAM (WITHOUT ENCLOSURES).

EXHIBIT P6 THE PHOTOCOPY OF I.A. NO. 7/2021 FILED IN O.S.

NO. O.S. NO. 8/2020 ON THE FILES OF THE II ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM.

EXHIBIT P7 THE PHOTOCOPY OF OBJECTION DATED 02-02-2021 FILED BY THE PLAINTIFF IN I.A. NO. 7/2021 IN O.S. NO. 8/2020 ON THE FILES OF THE II ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM.

EXHIBIT P8 THE PHOTOCOPY OF OBJECTION DATED 27-01-2021 FILED BY THE DEFENDANTS 1 AND 2 IN I.A. NO. 7/2021 IN O.S. NO. 8/2020 ON THE FILES OF THE II ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM. O.P.(C)No.1129/2022

EXHIBIT P9 THE PHOTOCOPY OF LAWYER'S NOTICE DATED 02-09-

2019 CAUSED TO BE ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.

EXHIBIT P10 THE PHOTOCOPY OF COMPLAINT DATED 01-12-2019 SUBMITTED BY THE PETITIONER AGAINST THE 1ST RESPONDENT BEFORE THE CIRCLE INSPECTOR, VATTIYOORKAVU POLICE STATION.

EXHIBIT P10(A) THE PHOTOCOPY OF ACKNOWLEDGMENT RECEIPT OF PETITION DATED 01-12-2019 ISSUED BY THE VATTIYOORKAVU POLICE STATION IN RESPECT OF RECEIPT OF PETITION NO. 175910/2019.

EXHIBIT P11 THE PHOTOCOPY OF ADDITIONAL AFFIDAVIT DATED 16-10-2021 FILED BY PETITIONER HEREIN IN I.A. NO. 7/2021 IN O.S. NO. 8/2020 PENDING ON THE FILES OF THE II ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM.

EXHIBIT P12           THE PHOTOCOPY OF THE ORDER DATED 30-03-2022 OF
                      THE      II     ADDITIONAL      SUB     JUDGE,

THIRUVANANTHAPURAM IN I.A. NO. 7/2021 IN O.S. NO. 8/2020.

RESPONDENT'S EXHIBITS: NIL