ASHOK KUMAR Vs. KOOTTALA KSHETHRA KSHEMA SAMITHY

JUDGEMENT

(1.) Ext. P24 order passed by the court below is under challenge. The petitioner is the plaintiff in a suit for fixation of boundary and for recovery of possession. The plaintiff claims title over the property having an extent of 1.20 Acres in survey Nos. 438/11-A and 438/11-B of the Kunnukara village. According to the petitioner, the said property was assigned through an order of the Land Tribunal in favour of the father of the petitioner namely, Achuthan Prabhakaran Nair, through assignment order dated 06.09.1988. Immediately after that, the father of the petitioner, as plaintiff, had preferred O.S. No. 579/1989 before the Munsiffs Court, Paravur seeking a decree of perpetual injunction against some persons, thereby restraining them from obstructing the removal of earth from the property and also the cultivation by the plaintiff in the property. It seems that through judgment dated 31.08.1995, the Munsiff's Court, Paravur dismissed the suit by taking the view that the circumstances available in the said case would go to show that the possession of the plaintiff over the plaint schedule property was in his capacity as office bearer of the Koottala Devi Temple Committee and that the plaintiff was attempting to assert personal right over the plaint schedule property, after obtaining Ext. A1 (the aforesaid patta) by claiming that he was having absolute right over the plaint schedule property. A finding was also endorsed to the effect that the property in question is Devaswom property. The aforesaid judgment was challenged by the father of the petitioner before the Additional District Court, North Paravur through Appeal Suit No. 127/1995. In the appeal, an I.A. was filed by the appellant as I.A. No. 894/1997 seeking leave of the court to 'withdraw the suit and the appeal' on the averment that "some formal defects had been crept in the suit. It seems that the learned Additional District Judge, vide judgment dated 04.12.1997, allowed the appeal as well as the aforesaid IA. by setting aside the decree passed by the Munsiff's Court and by permitting the appellant to ' withdraw the original suit with liberty to file a fresh suit'.

(2.) Thereafter, the petitioner filed DBA No. 25/2006 before this Court in respect of the property. Subsequently, almost within a month, the present petitioner had preferred O.S. No. 179/2006 before the Subordinate Judge's Court, North Paravur for declaration of title, fixation of boundary and for consequential injunction. This Court, vide order dated 22.06.2006, dismissed the DBA as withdrawn. It has been mentioned in the order that the pendency of O.S. No. 179/2006 with regard to the very same subject matter was brought to the notice of this Court and the appellant wanted permission to 'withdraw the said DBA' without prejudice to his right to prosecute the said suit.

(3.) Thereafter, the Subordinate Judge's Court, North Paravur considered I.A. No. 1289/2006 seeking an order of temporary injunction in O.S. No. 179/2006. In the said suit, the Kochi Devaswom Board, Koottala Kshethra Kshema Samithy, etc., were made parties. While dealing with I.A. No. 1289/2006, the court below held that the suit itself was not maintainable. On that ground, the suit as well as the I.A. was dismissed through order dated 08.08.2006.