Anuthomas and Minuelizabeth v State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945`** ## **`WP(C) NO. 3407 OF 2023`** ## **`PETITIONERS:`** ``` 1ANUTHOMAS AGED52YEARS W/OM.ITHOMAS,MULAMOOTTILVEEDU,CHENKULAMP.O, CHENKULAMVILLAGE,KOTTARAKKARATALUK,KOLLAM - PIN691510 2MINUELIZABETH AGED48YEARS W/OCHERIANMTHARAKAN,#G2,SONATA,SLSSYMPHONY, 2NDCROSS,NEARUNIONBANKOFINDIA,BHUVANESHWARI NAGAR,KARNATAKA560024. BYADVS. ALEXTHOMAS PHILIPT.VARGHESE THOMAST.VARGHESE ACHUSUBHAABRAHAM V.T.LITHA SREENATHVIJAYARAGHAVAN ARJUNRAJAP.C. K.R.MONISHA ``` ## **`RESPONDENTS:`** ``` 1STATEOFKERALA REPRESENTEDBYTHEHOMESECRETARYTOGOVERNMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001 2THEDIRECTORGENERALOFPOLICE(LAWANDORDER) POLICEHEADQUARTERS,THIRUVANANTHAPURAM-695001 3THESUPERINTENDENTOFPOLICE,PATHANAMTHITTA, PATHANAMTHITTA-689645. 4THESTATIONHOUSEOFFICER,THIRUVALLAPOLICESTATION - THIRUVALLA,PIN689101 ``` W.P C 3407 of 2023 2 ``` 5THETAHSILDAR(LR) REVENUETOWER,THIRUVALLA,PATHANAMTHITTA - PIN689101 6VARGHESE.P.VARGHESE AGED58YEARS,S/OOFVARGHESE,PARIYARATHHOUSE, THOLASSERY,THIRUVALLA-689101 7PRAVEENMATHEW AGED45YEARS S/OJACOBMATHEW,KODIYATTUHOUSE,THIRUVALLA - PIN689101 8ALICEJOSEPH AGED70YEARS,W/OC.TJOSEPH,CHERUKKARA,THEODICAL P.OAYIROOR,PATHANAMTHITTA-689613. 9ANIYAMMAMARKOSE AGED70YEARS,W/OMARKOSE,MARAMKANDATHIL, MULAPPURAM,IDUKKI,PIN-685581. BYADVS. JERRYMVARGHESE K.S.ARUNDAS(K/000181/2011) LEKSHMIS.NAIR(K/212/2011) ``` ``` SMTMABLECKURIEN,SR.GOVERNMENTPLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON09.02.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P C 3407 of 2023 3 ## **JUDGMENT** The petitioners, being the legal heirs of Jacob Abraham, assert their entitlement to certain properties as per Exhibit P1 will, following Mr. Abraham's demise. They claim joint ownership of a property spanning 13 ares and 68 square meters and have sought its mutation through the Tahsildar, which is stated to be pending. During an attempt by the Taluk Surveyor to demarcate the property, obstructions were caused by the sixth and ninth respondents. Consequently, the petitioners filed a suit as O.S No.312/2022 in the Munsiff Court of Thiruvalla, seeking an injunction and consequential relief. The learned Munsiff has issued an interim order prohibiting the defendants from unilaterally altering the property's boundaries or impeding access to the church until further court orders are issued. Despite this, it is alleged that on 14/8/2022, the respondents trespassed onto the disputed property. The petitioners immediately reported this infringement to the police by submitting Exhibit P7 and submitted a prosecution petition before the civil court against the defendants for contravening the injunction order. Further, on 1/11/2022, the defendants purportedly attempted to demolish boundary markers and fallen trees on the property, prompting them to lodge Ext.P9 before the police. On 25/1/2023, another instance of trespass and unauthorized construction by the W.P C 3407 of 2023 4 respondents was reported by the petitioners, which led the petitioners to lodge Exhibit P11 complaint with the police. It is on these assertions that this writ petition is filed seeking issuance of directions to the official respondents to ensure the petitioners' safety and secure enjoyment of their property, as delineated in the Ext.P2 deed and pursuant to the Ext.P6 order issued by the Munsiff Court. 2. A counter affidavit has been filed by the respondents 6 to 9. They contend that the petitioners herein had preferred O.S.No.312 of 2022 before the Munsiff Court, contending that the property owned by respondents 8 and 9, which is in possession of St. George Simhasana Church, Thiruvalla since 1959 is also possessed by them. It is stated that the learned Munsiff by the interim order, produced as Ext.P6, has only directed the respondents not to arbitrarily fix the boundaries and not to obstruct the petitioners from entering the church. It is contended that the petitioners had earlier filed O.S.No.147 of 2022 before the Munsiff Court seeking an order of injunction against the 6[th] respondent. The Interlocutory Application for injunction was dismissed by the learned Munsiff by Ext.R7(e) order. They state that though an appeal was preferred, the same was also rejected by the court of Subordinate Judge. It is contended that the assertion of the petitioners that they possess a larger extent of property is not correct. Further, they contend that their intention is to obstruct religious W.P C 3407 of 2023 5 rituals of the above Jacobite church on 10[th] and 11[th] of February, 2023, while the celebration in connection with the 91st death anniversary of His Holiness Ignatius Elias III Patriarch will be going on. It is stated that people from all over Kerala will be visiting the church on 9.02.2023, and arrangements are made for food and other facilities. 3. A reply affidavit has been filed, countering the contentions in the counter affidavit. 4. I have heard Sri. Alex Thomas, the learned counsel appearing for the petitioners, Sri.Jerry, the learned counsel appearing for respondents 6 to 9 and also the learned Government Pleader. 5. The learned Government Pleader pointed out that the earlier suit filed by the petitioners was dismissed and in the subsequent suit, an order of injunction has been granted by the Munsiff. It is submitted that as the civil suits are pending, the parties are bound to abide by the orders passed by the civil court. It is also submitted that there is no law and order situation prevailing in the area at the moment. 6. The learned counsel appearing for the petitioners submits that the respondents are clearly violating the orders passed by the Munsiff Court. It is submitted that though the petitioners are staying far away from the property, they apprehend physical harm, and they also apprehend that the respondents shall trespass into the property and cause mischief. It is W.P C 3407 of 2023 6 submitted that the police be directed to ensure that no harm is caused to the petitioners or to their property. 7. The learned counsel appearing for the party respondents submits that the earlier suit filed by the petitioners as O.S No.147 of 2022 as against the 6[th] respondent was dismissed by the learned Munsiff. The appeals have also been dismissed. It is further submitted that in the subsequent suit, which was filed as O.S No.312 of 2022, an interim order has been passed by the learned Munsiff, and according to the learned counsel, the party respondents have no intention to violate the order passed by the learned Munsiff. It is further submitted that the St.George Simhasana Church is situated on the northwestern corner of the property of the petitioners herein and on the northern side of their property is a pathway that leads to the Simhasana church. To the northern side of the said pathway, lies the property of Annie Joseph and Annie Markose. It is submitted that the aforesaid property has been handed over to the church for the purpose of parking vehicles and for other activities. The learned counsel contends that the petitioners are raising a claim in respect of the aforesaid property which stands in the name of Annie Joseph and Annie Markose. It is submitted that a decision as to the rival claims in respect of the property can be taken only by the Munsiff, and till orders are passed, the respondents have no intention to violate the order. It is further submitted W.P C 3407 of 2023 7 that this Court, in a writ petition filed under Article 226, will not be justified in deciding in one way or the other with regard to the property rights of the parties, particularly when a civil suit is pending consideration before the learned Munsiff. 8. I have considered the submissions advanced. I find that the petitioners have already approached the learned Munsiff and have filed O.S No.312 of 2022. Ext.P6 is the order of injunction. The order of injunction says that the parties shall not arbitrarily fix the boundaries of the property and demarcate the same. There is also an injunction in favor of the plaintiffs that they shall not be obstructed from entering the church. It is also admitted that complaining of violation of the interim order, they have filed an application to prosecute the defendants under Order XXIX Rule 2A of the Code of Civil Procedure. The party respondents submit that they have no intention to violate the order passed by the learned Munsiff. 9. In **Krishnan B. K. V Superintendent of Police** [2008 (1) KLT 892], a Division Bench of this Court has held that a person aggrieved by the infringement of his civil rights can move to the Civil Court and get relief. If a cognizable offence is committed and information is lodged, the police have a duty to act in accordance with law. But, if there is a failure on the part of the police to do that, the remedy of the aggrieved party is not to approach the High Court under Art.226 of the Constitution of India. He has to move either W.P C 3407 of 2023 8 the superior officer of the police or the concerned Criminal Court under the relevant provisions of the Code of Criminal Procedure. It was further held that the police do not have any duty to adjudicate the rival claims and give protection to the petitioner after rendering a finding in their favor. 10. In almost identical circumstances, this Court has taken the following view in **Kunhumuhammed v. Bava Haji** [1999 (2) KLT 816], - wherein it was held as follows: "7. x x x x When there is dispute between parties and when it is only an interim ex parte order passed by the Munsiff which alone is in force, this Court shall not interfere in the matter invoking its jurisdiction under Art.226 of the Constitution of India with a direction for police aid. xxxx xxxx xxxx 8. We are of the view that this Court shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad interim ex parte order of the Civil Court and that only a final order passed under R.1 or R.2 of O.39 of the Code of Civil Procedure can be enforced with the assistance of the police. x x x x Courts should be reluctant to grant police protection on the basis of ex parte injunction orders, which would only pave the way for further litigation between parties, since the parties, on the basis of the police protection order and with the connivance of the police, complete constructions or commit waste or do other acts which they would not be able to do even after final orders are passed by the Civil Court..........." W.P C 3407 of 2023 9 ## 11. In **Raman and Others v State of Kerala** [2019 (1) KHC 169], a Division Bench of this Court has held as under: 10………………………….Even otherwise, the petitioners, who obtained a decree for permanent prohibitory injunction from a competent court against the respondents, are at liberty to approach the execution court for executing the decree as contemplated under Order XXI R.32 of the Code of Civil Procedure, 1908. Having resorted to execution proceedings by virtue of Ext.P6 Execution Petition, the petitioners are not justified in insisting upon before this Court for issuance of a writ or in the nature of mandamus directing the Police Authorities to protect their claimed possession of the properties without establishing their possession finally in an appropriate civil court. 12. In the light of the principles laid down by this Court, I am of the considered opinion that absolutely no reasons are made out by the petitioners for the grant of an order of police protection, particularly when respondents 6 to 9 have undertaken before this Court that they shall abide by the orders passed by the learned Munsiff in its letter and spirit. However, if the party respondents, who are the defendants in the suit, violate the order of injunction, it is for the plaintiff to move the learned Munsiff and seek appropriate orders for violation of the order of injunction. It is also made clear that if there is any likelihood of any law and order situation leading to the breach of peace, or if either of the parties takes the law into their own hands, the other party may approach the jurisdictional Station House Officer, W.P C 3407 of 2023 10 who after ascertaining the genuinity of the allegations shall take appropriate action. This petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` IAP ``` W.P C 3407 of 2023 11 ## **`APPENDIX OF WP(C) 3407/2023`** ``` PETITIONERS’EXHIBITS: ``` - `Exhibit P1 TRUE TYPED COPY OF WILL DEED NO.6/1990 REGISTERED AT THIRUVALL SUB REGISTRAR OFFICE ON 15.01.1990` - `Exhibit P2 TRUE COPY AGREEMENT SIGNED BETWEEN PETITIONERS R7 ON 25-06-2020` - `Exhibit P3 TRUE COPY OF PARTITION DEED EXECUTED BY PETITIONERS ON 20.08.2020` - `Exhibit P4 TRUE COPY OF THE PETITION FILED WITH SHO THIRUVALLA POLICE STATION ON 12.03.2022` - `Exhibit P5 TRUE COPY OF PROCEEDINGS OF TAHSILDAR(LR) THIRUVALLA ON 10.05.2022` - `Exhibit P6 TRUE COPY OF ORDER PASSED BY THIRUVALLA MUNSIFF COURT ON IA 1/2022 IN OS 312/2022 DATED 08-08-2022` - `Exhibit P7 TRUE COPY OF PETITION FILED WITH SHO THIRUVALLA POLICE STATION ON 14.08.2022` - `Exhibit P8 TRUE COPY OF IA NO.3/2022 OF OS NO. 312/2022 FILED ON 16.8.2022 AT MUNSIFF COURT THIRUVALLA` - `Exhibit P9 TRUE COPY OF PETITION FILED WITH SHO THIRUVALLA POLICE STATION ON 01.11.2022` - `Exhibit P10 COPY OF PETITION FILED WITH SUPERINTENDENT OF POLICE PATHANAMTHITTA 09.01.023` - `Exhibit P11 TRUE COPY OF PETITION FILED WITH SHO THIRUVALLA POLICE STATION ON 25.01.2023` ``` ExhibitP12THETRUECOPYOFPHOTOGRAPHSTOOKON 02-02-2023AT11.30PM ``` W.P C 3407 of 2023 12 ``` ExhibitP13TRUECOPYOFCOMPLAINTFILEDWITHSHO THIRUVALLAON5/2/2023 ExhibitP14TRUECOPYOFPHOTOGRAPHSTAKENBY PETITIONERON5-2-2023 ExhibitP15Truecopyoflandtaxreceiptissuedby GovernmentofKeralaNoKL03051103175/2020 dated13.08.2020 ExhibitP16TruecopyofLandTaxreceiptsissuedby theGovernmentofKeralaNo.KL03051101853/ 2022dated04.04.2022 ExhibitP17THETRUECOPYOFCOMPLAINTFILEDWITHSHO THIRUVALLAON03.02.2024. ExhibitP18THETRUECOPYOFTHEPHOTOGRAPHTOOKBYTHE PETITIONERSON03.02.2024. ``` ``` ExhibitP19THETRUECOPYOFCOMPLAINTFILEDWITH PATHANAMTHITTADISTRICTPOLICECHIEFON 03.02.2024. ``` ``` RESPONDENTS’EXHIBITS: ``` - `Exhibit R7(a) A TRUE COPY OF THE PLAINT IN O.S NO.312/2022 PENDING BEFORE THE HONOURABLE MUNSIFF COURT THIRUVALLA` - `Exhibit R7(b) A TRUE COPY OF THE PLAINT IN O.S NO.147/2022 PENDING ON THE FILE OF THE HONOURABLE MUNSIFF COURT THIRUVALLA` ``` ExhibitR7(c)ATRUECOPYOFTHEINTERLOCUTORY APPLICATIONSNO.1/2022OFO.SNO.147/2022 ONTHEFILEOFTHEHONOURABLEMUNSIFFCOURT THIRUVALLA ``` ``` ExhibitR7(d)ATRUECOPYOFTHEINTERLOCUTORY APPLICATIONSNO.8/2022OFO.SNO.147/2022 ONTHEFILEOFTHEHONOURABLEMUNSIFFCOURT THIRUVALLA ExhibitR7(e)ATRUECOPYOFTHEORDERPASSEDBY HONOURABLEMUNSIFF'SCOURT,TIRUVALLAIN ``` W.P C 3407 of 2023 13 ``` I.ANO.1/2022ANDI.ANO.8/2022OFO.S NO.147/2022DATED26.10.2022 ``` ``` ExhibitR7(f)ATRUECOPYOFTHESTATEMENTOFMRSOMAN ExhibitR7(g)ATRUEPHOTOGRAPHS ExhibitR7(h)ATRUECOPYOFTHENOTICEBOOKLET ``` ``` ExhibitR7(i) ``` ``` AtruecopyoftheCommonOrderpassedby HonorableSubCourt,TiruvallainCMA No.13/2022andCMANo.14/2022dated 11.04.2023 ``` ``` ExhibitR7(j)Thenoticebookletofthe92ndDeath AnniversaryofHisHoliness.IgnatiusElias IIIPatriarch ```