SOBIN MATHEW Vs. STATE OF KERALA AND OTHERS

JUDGEMENT

(1.) The petitioner claims to be aggrieved by the steps taken by the respondents 3 to 5 for re-surveying the property lying in Survey No.452/6, 452/10, 456/11 of Anickad Village, Kottayam District, pursuant to the impugned Ext.P-2 notice dated 17.07.2018. The case of the petitioner is that 17.5 cents of property inclusive of a residential house building lying in the said property had originally belonged to the 7th respondent. The 7th respondent and her husband, viz. the 8th respondent had earlier received an amount of Rs. 4 lakhs as advance towards the part of sale consideration on 18.05.2011 from the petitioner's father in respect of the said property, it is averred. That later on 01.06.2011, the 7th respondent and her husband (R8) had received Rs. 12 lakhs from the petitioner's father as balance sale consideration and had executed a fresh agreement on that day and possession of the said property and building were given to the petitioner's father and he was residing with his family members therein in that property. After the petitioner's father's death, the petitioner came to be in possession of the property and he is cultivating and taking usufructs from the property, it is alleged. Later, on account of certain financial transactions between R6 and R7, R6 had threatened R7 and had secured Sale Deed No.1310/2013 of Vazhoor SRO in respect of the abovesaid property, which got thus conveyed to him. In those circumstances, the petitioner had filed O.S.No.519/2015 before the Additional Munsiff Court, Kottayam for setting aside the Sale Deed No.1310/2013 of Vazhoor SRO and for permanent prohibitory injunction. The 6th respondent had filed O.S.No.804/2014 against the petitioner and R7, for a mandatory injunction to direct the defendants to deliver vacant possession of the property and building. Both the suits were jointly tried and disposed of as per Ext.P-1 common judgment dated 09.02.2018, whereby O.S.No.804/2014 filed by R6 was allowed and O.S.No.519/2015 filed by the petitioner herein was dismissed. The petitioner is now taking expeditious steps to file appeal against Ext.P-1 common judgment. In the meanwhile, respondents 3 to 5 had taken steps for resurveying the boundaries of the property without any notice to the petitioner. It is the projected case of the petitioner that it is on the basis of the agreement for sale and after paying sale consideration, the petitioner and his family members have been residing in the said property. Therefore, steps taken pursuant to Ext.P-2 notice is illegal and arbitrary etc. No notice was served to the petitioner for participating in Ext.P-2 survey. It is in the light of these averments, the petitioner has filed the instant Writ Petition (Civil) with the following prayers:

(2.) Heard Sri. M.V. Thamban, learned counsel appearing for the petitioner and Sri.K.P.Madhu, learned Government Pleader appearing for the official respondents 1 to 5. In the nature of the orders proposed to be passed in this Writ Petition, notices to R6 to R8 will stand dispensed with.

(3.) Sri.K.P.Madhu, learned Government Pleader appearing for the official respondents 1 to 5 would submit that even going by the admitted pleadings of the petitioner, he is having only the possession and not its title, in respect of the property, which is sought to be surveyed as per the impugned Ext.P-2 notice and that therefore, he has no right under the provisions of the Boundaries and Surveys Act, 1961 and the Rules framed thereunder to challenge Ext.P-2 notice and that merely because the petitioner is allegedly having possession of the property, will not confer any right on the petitioner to challenge Ext.P-2 notice which has been issued on the basis of the request of R6 who claims title over the property, etc. Even as per the admitted pleadings of the petitioner, as per Ext.P-1 common judgment dated 09.02.2018, O.S.No.519/2015 filed by the petitioner herein has been dismissed and O.S.No.804/2014 filed by R6 has been decreed. The decreetal portion of Ext.P-1 common judgment reads as follows: