Remabai Pillai and Sivasankara Pillai vs Smt. Shobhanamani S.B. and Others

P.R. Ramachandra Menon, J.—The basic issue involved in this writ appeal pertains to a civil dispute pending between the Appellants who were the Respondents 4 and 5 in the writ petition and the Respondents 1 and 2 herein who were the writ Petitioners.

The root cause relates to Ext.P1 partition deed, which is sought to be set aside at the instance of the first Appellant (4th Respondent in the writ petition) by filing a civil suit (O.S. No. 120 of 2010) and this is pending consideration before the Munsiff''s Court, Karunagappally. During the pendency of the above suit the writ Petitioners also filed a civil suit as O.S. No. 192 of 2010 before the very same court to restrain the Appellants herein from trespassing into their property and committing any waste. The Civil Court passed an interim order of injunction which is stated as still in force. While so, the writ Petitioners invoking the provisions under Rules 43 and 44 of the Survey and Boundaries Rules, filed Exts.P5 and P6 applications before the Tahsildar who is the second Respondent in the writ petition and the necessary fees were also remitted, pursuant to which the matter was being proceeded with. Seeking to intercept the survey, the first Appellant approached this Court by filing W.P. (C) No. 14847 of 2010, which culminated in Ext.P9 judgment passed on 25th May, 2010. As borne by Ext.P9, after arguing the matter for quite some time, the learned Counsel appearing for the writ Petitioner therein, sought permission of the Court to withdraw the writ petition without prejudice to the rights and liberties of the said Petitioner to move the Civil Court in O.S. No. 120 of 2010 for appropriate reliefs. Accordingly, the writ petition was dismissed as withdrawn, reserving the liberty as aforesaid.

However, instead of taking appropriate steps before the Civil Court, pursuant to Ext.P9 judgment, the first Appellant filed Ext.P10 representation before the Revenue Divisional Officer, Kollam (who is the first Respondent in the writ petition and the third respondent in the writ appeal) seeking some or other reliefs. After considering the matter, the Revenue Divisional Officer made an ''endorsement'' on Ext.P10 directing the Tahsildar to comply with the judgment in its letter and spirit and to consider the matter ''in favour'' of the party who preferred Ext.P10; pursuant to which, the survey proceedings came to a stand still, which made the writ Petitioners to approach this Court by filing W.P.(C) No. 22992 of 2010.

After hearing both the sides, the learned Single Judge observed that it was totally incorrect and improper for the Revenue Divisional Officer to have made the impugned endorsement, in so far as there was ''no direction'' in Ext.P9 judgment, but for granting liberty to the writ Petitioner therein to approach the Civil Court in O.S. No. 120 of 2010 with regard to the prayer for intercepting the survey proceedings. In the said circumstances, the writ petition was allowed, setting aside the ''endorsement'' made by the Revenue Divisional Officer, however giving a positive direction to the concerned authorities to proceed with further steps in connection with the survey pursuant to Exts.P5 to P8. It has also been made clear that anything done in pursuance of the aforesaid direction will be subject to the outcome of the pending civil suit. Aggrieved by the said verdict, Respondents 4 and 5 in the writ petition are now before this Court.

After hearing the matter at length, this Court finds that the Appellants cannot be stated as aggrieved in any manner because of the verdict passed by the learned Single Judge. Ext.P9 judgment does not contain any positive direction to be complied with and as such the impugned endorsement could not have been made by the Revenue Divisional Officer. We find that the learned Single Judge is perfectly right in making the observation as above. The rights and liberties of the Appellants, as made clear in Ext.P9, were left open enabling the party to approach the concerned Civil Court. The learned Counsel for the Appellants submits that the Appellants have already preferred necessary interlocutory applications before the Civil Court in O.S. No. 120 of 2010 for appropriate reliefs and that the matter is still to be finalized.

In the above circumstances, interference is declined and the writ appeal is dismissed, however making it clear that further proceedings pursuant to Exts.P5 and P8 will of course be subject to the orders, if any, passed/to be passed by the Civil Court in the pending proceedings. It is also made clear that, if there is no such order, nothing prevents the competent authorities from taking appropriate steps, in accordance with law.