Ajith Associates (Pvt.) Ltd. v. Commissioner of Police, Ernakulam & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938 WP(C).No. 17740 of 2016 (N) ---------------------------- PETITIONER: ------------- AJITH ASSOCIATES (PVT.) LTD. A COMPANY REGISTERED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT III FLOOR, PUTHOORAN PLAZA, KPCC JUNCTION, M.G.ROAD, ERNAKULAM, KOCHI-682011, REPRESENTED BY ITS MANAGING DIRECTOR-B.R.AJIT BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN SMT.NEENU PAVITHRAN RESPONDENTS: -------------- 1. THE COMMISSIONER OF POLICE ERNAKULAM, ERNAKULAM-682031 2. THE CIRCLE INSPECTOR OF POLICE, TRIPUNITHURA POLICE STATION, ERNAKULAM-682304 3. THE SUB INSPECTOR OF POLICE MARADU POLICE STATION, MARADU, ERNAKULAM-682304 4. VIMALA AGED 55 YEARS, W/O LATE BALAN, KUNNARA HOUSE, EROOR, TRIPUNITHURA, ERNAKULAM-682304 5. GEETHA, AGED 33 YEARS, D/O.LATE BALAN, KUNNARA HOUSE, EROOR, TRIPUNITHURA, ERNAKULAM-682304 6. GIREESH AGED 30 YEARS, S/O. LATE BALAN, KUNNARA HOUSE, EROOR, TRIPUNITHURA, ERNAKULAM-682304 R4 TO R6 BY ADV. SRI.K.V.SADANANDA PRABHU R1 TO R3 BY GOVERNMENT PLEADER SRI.N.SURESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17740 of 2016 (N) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXT.P1 TRUE COPY OF THE SALE DEED NO. 2973/1994 OF THE SRO THRIPUNNITUHURA DT. 26/7/94 EXT.P2 TRUE COPY OF THE TAX RECEIPT NO 5445933 ISSUED BY THE VILLAGE OFFICER, NADAMA VILLAGE DT. 16/1/16 EXT.P3 TRUE COPY OF THE POSSESSION CERTIFICATE NO 1916/16 ISSUED BY THE VILLAGE OFFICER, NADAMA VILLAGE DT. 4/5/16 EXT.P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO. 912/16 ISSUED BY THE SRO THRIPUNITHURA DT. 28/1/16 EXT.P5 TRUE COPY OF THE JUDGMENT OF THE MUNSIFF DT. 27/1/11 EXT.P6 TRUE COPY OF THE JUDGMENT OF THE 1ST ADDITIONAL SUB JUDGE DT. 5/12/15 EXT.P7 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER DT. 21/1/16 BEFORE THE ADDITIONAL TAHSILDAR, KANAYANNUR TALUK TO CONDUCT A SURVEY AND FIX THE BOUNDARY OF THE PROPERTY EXT.P8 TRUE COPY OF THE NOTICE ISSUED BY THE TALUK SURVEYOR TO THE MANAGING DIRECTOR OF THE PETITIONER EXT.P9 TRUE COPY OF THE REPRESENTATION DT. 5/3/16 FILED BY THE 3RD RESPONDENT. EXT.P10 TRUE COPY OF THE PLAINT DATED NIL IN O.S.NO.691/2009 OF THE III ADDITIONAL MUNSIFF COURT, ERNAKULAM RESPONDENT(S)' EXHIBITS ----------------------- EXT.R4(a) TRUE COPY OF THE SECOND APPEAL MEMORANDUM DATED 23.5.2016 FILED BEFORE THIS COURT //TRUE COPY// . ## **“C.R.”** ## **K.T.SANKARAN & A.HARIPRASAD, JJ. -------------------------------------W.P.(C) No.17740 of 2016 (N) -------------------------------------Dated this the 31[st] day of May, 2016** ## **JUDGMENT** ## A.Hariprasad, J. ## Petitioner seeks police protection with the following prayers: _“(i) Issue a Writ of Mandamus directing respondents 1 to 3 to render adequate and sufficient police protection to the petitioner, its employees, etc; for their peaceful enjoyment and possession of its 10.800 cents of property situated in Sy.No.481/1 of Nadama Village covered by Exhibit P1 sale deed, and ensure that the peaceful possession and enjoyment of the said property by the petitioner is not obstructed in any manner whatsoever._ _(ii) Pass such other orders that this Honourable Court deems fit to pass in the facts and circumstances of the case.”_ 2. Facts, stated shortly, are as follows: Petitioner is a company registered under the Indian Companies Act, 1956. Petitioner had 2 WP(C) No.17740/2016(N) purchased 10.800 cents of property in Survey No.481/1 of Nadama Village as per Ext.P1 document from Kunnarayil Balan. Ext.P2 is the copy of basic tax receipt and Ext.P3 is the possession certificate in respect of the said property. Ext.P4 is the encumbrance certificate. It is the case of the petitioner that the respondents 4 to 6, who are the legal heirs of the assignor, are causing trouble in fixing the boundary of Ext.P1 property. Respondents 4 to 6 had filed O.S.No.691 of 2009 before the Munsiff's Court, Ernakulam seeking a declaration that they had acquired title over the property by prescription and a prohibitory injunction against the petitioner. As per Ext.P5 judgment, the trial court had dismissed the suit. Respondents 4 to 6 had taken up the matter in appeal in A.S.No.63 of 2011 before the Sub Court, Ernakulam. The lower appellate court dismissed the appeal, confirming the judgment and decree of the trial court. Ext.P6 is the judgment of the lower appellate court. Case of the petitioner is that after dismissal of the appeal, it approached the Taluk Surveyor for fixation of boundary by filing Ext.P7 petition. Ext.P8 is the notice issued by the Taluk Surveyor directing the petitioner to clear the wild growths and weeds for measuring out the property. When that was attempted to be done, the respondents 4 to 6 obstructed. Hence it filed Ext.P9 petition before the Sub Inspector of Police, Maradu seeking police protection. Police did not render any assistance and hence the petitioner has approached this Court. 3 WP(C) No.17740/2016(N) 3. Respondents 4 to 6 appeared and filed a counter statement opposing the reliefs prayed for. According to the respondents, the writ petition itself is not maintainable. It is also submitted that they have preferred a second appeal against the appellate judgment and decree. The second appeal is pending before this Court. It is also the contention of the respondents that the petitioner has no right or possession over Ext.P1 property. Respondents further contended that the writ petition for police protection is filed as a short cut for fixing the boundary in respect of the disputed properties without taking recourse to a proper remedy. 4. Heard the learned counsel appearing for the petitioner and the contesting party respondents. Learned Government Pleader is also heard. 5. Following legal conundrums arise for determination: Whether the writ petition is maintainable? Was it obligatory for the petitioner to approach a civil court with a suit for fixation of boundary and other incidental reliefs? 6. Learned counsel for the petitioner contended that Ext.P5, the judgment of the trial court and Ext.P6, the first appellate judgment would show that the respondents have no right or possession over the property. It is therefore contended that the petitioner is entitled to get the reliefs claimed. 7. Per contra, the party respondents would contend that they 4 WP(C) No.17740/2016(N) have preferred a second appeal against Ext.P6 judgment and that is pending. That apart, Exts.P5 and P6 would not enable the petitioner to approach this Court with a petition of this kind since there is no positive finding in its favour. 8. It is trite that questions relating to title, possession, right to enjoy an immovable property, etc. are matters falling within the exclusive jurisdiction of civil courts. In a long line of decisions, this Court has held that such matters shall not be left to police for adjudication for very many reasons. Axiomatic is the proposition that no law enables the police officers to determine the disputed questions of civil rights. Right, title, interest, possession, etc. in respect of properties are matters to be determined by civil courts in appropriate proceedings. We are of the definite view that such matters shall not be relegated to police authorities for the following reasons. Firstly, they are not supposed to handle such matters unless there is any breach of peace, law and order situation or commission of an offence enabling them to enforce the law. Secondly, they do not have the expertise to determine vexed factual and legal questions relating to the civil rights of parties. Thirdly, if such matters are left to be determined by police authorities, it would result in meting out injustice, atleast to one of the parties, for obvious reasons. 9. Our view stated above is fortified by a number of precedents. 5 WP(C) No.17740/2016(N) This Court speaking through a learned Single Judge in **K.C.Thomas v. Supt. of Police (1980 KLT 151)** held as follows: _“4 Questions of possession, right to enjoy property or easements without obstruction, nuisances and similar other matters are best adjudged by a civil court. These are not certainly matters for the police to sit in judgment upon. The rule of law in this country is likely to be jeopardised if policemen are to decide whether they should recognise rights of easements, rights of possession and other similar civil rights and use their force to help one party or other in whose favour they reach a decision. Resort to this court seeking police assistance in matters where decisions on such questions are called for would certainly be ill-advised. To recognise policemen as competent to decide such disputes would be giving them powers which are capable of abuse. If there is a genuine dispute between the parties that has to be resolved by the civil courts. If the police feel that there is a genuine dispute which should normally call for decision by an appropriate court, they will be right in refusing to interfere.”_ 10. In **George Mirante v. State of Kerala (1990 (2) KLT 89)** this ## Court held as follows: _“In matters involving civil rights, or disputes_ 6 WP(C) No.17740/2016(N) _regarding title and possession over property, it is not proper for this court to interfere under Art.226 of the Constitution with an order for police protection. Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of property or regarding boundaries or regarding easements or the like. These are matters essentially within the domain of the civil courts on which the parties should approach those courts and seek redress. Police does not have the right to decide on such disputes, nor is it proper or competent for them to do so. They do not also have the machinery for the purpose. It is outside the limits of the duties which are cast on them, which is to prevent breach of peace or commission of cognisable offences, and to preserve law and order. It will be totally against the rule of law if the right of the police is to be used in favour of one party against another without an adjudication by any appropriate authority of the rights of either side. .........”_ 11. A Division Bench of this Court in **Kallai Abu v. Sub Inspector** **of Police (2013(1) KLT 320)** has clearly held that what this Court can order, direct or compel in a writ petition under Article 226 of the Constitution of India seeking police protection is what the police ought to do or ought to have been done under any of the statute governing the duties of police. It 7 WP(C) No.17740/2016(N) is further held that neither the Criminal Procedure Code nor the Police Act or any of the statute governing the act or duties of police enjoins them to render police assistance or police protection for determining the disputed civil rights. 12. Facts in this case would show that what the petitioner seeks to enforce is a right said to have been accrued to it by the decree passed against the contesting respondents in their suit denying their claim for declaration and injunction. It is to be remembered that there is no decree in favour of the petitioner which is capable of execution at its instance. For that reason also, we are of the considered view that the petitioner is not entitled to claim police protection in the manner prayed for. Had the petitioner obtained a decree in its favour, which is capable of being executed against the judgment debtors, the position would have been different. A Division Bench of this Court in **Illyas v. State of Kerala (2014 (4) KLT 362)** has held that in a case where once a decree for possession had been executed and the decree holder had taken possession, then police protection could be given if the judgment debtor again attempted to trespass upon the property in defiance of the orders passed in the execution proceedings. It is also held that in such a situation, the plaintiff/decree holder shall not be driven to a civil court for another round 8 WP(C) No.17740/2016(N) of litigation seeking recovery of possession. That principle is totally inapplicable to this case. It is well settled that a suit for fixation of boundary is a civil suit falling under Section 9 of the Code Civil Procedure,1908. From Exts.P5 and P6, it is clear that what the contesting respondents raised therein is not merely a boundary dispute. In such a situation, taking recourse to the Survey and Boundaries Act, 1961 will not solve the issue. For the above said reasons, we find that the petition is legally not maintainable. A petition under Article 226 of the Constitution of India is not a substitute for a regular civil suit for fixation of boundary. We are of the opinion that the petitioner is trying to short circuit the legal process of filing a civil suit for fixation of boundary or other reliefs claimable in order to establish its right over the property. Therefore, we dismiss the petition as one not maintainable in law. ## **K.T.SANKARAN, JUDGE.** ## **A. HARIPRASAD, JUDGE.** **cks**