Dr. V. Sunil Kumar vs The District Collector
2022 Latest Caselaw 2838 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                        WP(C) NO. 3296 OF 2022
PETITIONER:

          DR. V. SUNIL KUMAR
          AGED 51 YEARS
          SS/O VASUDEVA CHETTIYAR,
          VILAYIL VEEDU, MUZHANGODI,
          KALLELIBHAGOM, THODIYOOR,
          KARUNAGAPPALLY,
          NOW RESIDING AT RAJAMANGALAM,
          T.C NO 3/2390 (1)
          HOUSE NO P.K.R.A 60, PATTOM,
          THIRUANANTHAPURAM-695 004.

          BY ADVS.
          R.SUNIL KUMAR
          A.SALINI LAL
          ARUN KRISHNA



RESPONDENTS:

    1     THE DISTRICT COLLECTOR
          COLLECTORATE, CIVIL STATION, KOLLAM-691 013.

    2     THE TAHSILDAR,
          TALUK OFFICE, KARUNAGAAPPAALLY-690 544.

    3     THE TALUK SURVEYOR,
          TALUK OFFICE, KARUNAGAPPALLY-690 544.




OTHER PRESENT:

          SMT MABLE C KURIAN SR.GP



  THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION         ON
16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 3296 OF 2022

                                  2




                           JUDGMENT

The petitioner says that the property involved in this

case was owned by his father, which was settled by him in

his favour through Ext.P1 Settlement Deed. He says that

since the settlement was made by his own father, he did not

measure the property at the time when the same was

executed and consequently, that there is a controversy as to

its demarcation and boundaries.

2. The petitioner, however, admits that he has filed a

suit against a third party, which is numbered as

O.S.No.406/2020 on the files of the Munsiff's Court,

Karunagappally; but that this has nothing to do with the title

of the property in question since he has only sought for an

injunction against the defendant therein from trespassing

into the same.

3. The petitioner, therefore, prays that Ext.P6 be WP(C) NO. 3296 OF 2022

taken up and disposed of by the appropriate Authority, thus

resulting in survey and demarcation of the property covered

by Ext.P1, within a time frame to be fixed by this Court.

4. The afore request of Smt.A.Salini Lal - learned

counsel for the petitioner, was answered by the learned

Senior Government Pleader - Smt.Mable C.Kurian, saying

that Ext.P6 is only a notice issued pursuant to an application

made by the Public Works Department (PWD) and not by the

petitioner. She submitted that, therefore, unless the

petitioner makes a proper application, this writ petition is not

maintainable. She then added that apart from the afore

suit, another one-numbered as O.S.No.18/2012 on the files

of the Munsiffs' Court, Karunagappilly - has been filed by

certain other persons, staking a claim of prescriptive

easement over certain extents of property in question. She

submitted that, therefore, unless the Civil suits are disposed

of, action as requested by the petitioner cannot be WP(C) NO. 3296 OF 2022

completed.

5. In reply, Smt. A. Salini Lal - learned counsel

for the petitioner, submitted that the suit mentioned

by the learned Senior Government Pleader, namely O.S.

No.18/2012, has been filed by certain neighbours who claim

easement over the property in question; and therefore, that

even if it is to end to the detriment of her client, the request

for survey of the same cannot be in any manner refused.

She explained that even if the survey is completed and

should the Civil Court find any right of easement in favour of

any other person, the same will certainly have an overriding

effect and that her client will abide by the same in terms of

the law.

6. I must say that I find substantial force in the

submissions of Smt.A. Salini Lal, because as far as the first

suit is concerned, it is filed by her client against another

person seeking injunction from trespassing into the property WP(C) NO. 3296 OF 2022

in question. As far as the suit of the year 2012 is concerned,

it is admitted that it has been filed by certain persons

seeking right of easement and, therefore, even if the Civil

Court is to find that such rights are to be suffered by the

petitioner's property, it will certainly be binding on the

petitioner and the property.

7. I am, therefore, of the view that merely because

civil suits are pending, it does not require the survey of the

property to be held up.

Resultantly, I order this writ petition and leave liberty to

the petitioner to move an application for survey and

demarcation of the property covered by Ext.P1 before the

respondent - Jurisdictional Tahsildar (Land Records); and if

this is done within a period of two weeks from the date of

receipt of a copy of this judgment, it shall be considered,

after affording an opportunity of being heard to the

petitioner; thus culminating in an appropriate order and WP(C) NO. 3296 OF 2022

necessary action thereon, as expeditiously as is possible but

not later than three months from the date on which it is

received.

Needless to say, even if the survey is completed and a

report and sketch settled in terms of the afore order, any

judgment or decree from a competent Civil Court will

override the same and the petitioner will be bound to abide

by it, notwithstanding any observation contain herein.

Sd/-

DEVAN RAMACHANDRAN JUDGE AKV/ANB WP(C) NO. 3296 OF 2022

APPENDIX OF WP(C) 3296/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF SETTLEMENT DEED NO 2229/2016 DATED 26.9.2016 OF KARUNAGAPPALLY S.R.O

Exhibit P2 COPY OF THE TAX RECEIPT DATED 15.9.21

Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER KALLELIBHAGOM DATED 24.5.2008

Exhibit P4 TRUE COPY OF THE .FI.R NO 2455/2020 DATED 17.8.20 OF KARUNAGAPPALLY POLICE STATION

Exhibit P5 TRUE COPY OF THE SUBMISSION MADE BY THE PETITIONER DATED 7.9.2020 BEFORE THE ASST COMMISSIONER OF POLICE, KARUNGAGAPPALLY ALONG WITH DOCUMENTS

Exhibit P6 TRUE COPY OF THE NOTICE DATED 17.6.21 ISSUED BY THE TALUK SURVEYOR

Exhibit P7 TRUE COPY OF THE NOTICE DATED 5.1.22 ISSUED BY THE TALUK SURVEYOR

Exhibit P8 TRUE COPY OF THE BUILDING PERMIT DATED 5.11.20 ISSUED BY SECRETARY THODIYOOR GRAMA PANCHAYATH

Exhibit P9 TRUE COPY OF THE LETTER ISSUED BY WP(C) NO. 3296 OF 2022

THE SECRETARY OF THODIYOOR GRAMA PANCHAYATH DATED 26.8.21

Exhibit P10 TRUE COPY OF THE EXPLANATION DATED 1.11.21 ISSUED BY PETITIONER

Exhibit P11 TRUE COPY OF THE LETTER OF THE SECRETARY OF GRAMA PANCHAYATH, THODIYOOR DATED 15.11.21

Exhibit P12 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT

Exhibit P13 TRUE COPY OF THE PLAINT IN OS NO.408/2020

Exhibit P14 TRUE COPY OF THE PLAINT IN OS NO.8/2012

Exhibit P15 TRUE COPY OF THE PLAINT IN OS NO.406/2020