C. Ebenzer v. The City Police Commissioner, Kochi City and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA,** ## **1943** ## **WA NO. 1412 OF 2021** **AGAINST THE ORDER/JUDGMENT IN WP(C) 17069/2021 OF HIGH** ## **COURT OF KERALA, ERNAKULAM** ## **APPELLANT/3RD RESPONDENT:** **C.L.EBENZER, AGED 55 YEARS S/O.LATE LONANKUTTY, CHULLIKKATTU HOUSE, CHERANELLOOR DESOM, CHERANELLOOR POST, PIN-682 034.** **BY ADV P.K.RAVI SANKAR** ## **RESPONDENTS/PETITIONERS & 1ST AND 2ND RESPONDENTS** - **1 JOSEPH JAYAN, AGED 64 YEARS S/O.LATE LONANKUTTY, CHULLIKKATTU HOUSE, CHERANELLOOR DESOM, CHERANELLOOR POST, PIN-682 034.** **2 MARY LONANKUTTY, AGED 55 YEARS S/O.LATE LONANKUTTY, CHULLIKKATTU HOUSE, CHERANELLOOR DESOM, CHERANELLOOR POST, PIN-682 034.** - **3 THE CITY POLICE COMMISSIONER, COCHIN CITY, REVENUE TOWER, ERNAKULAM-682 011.** - **4 STATION HOUSE OFFICER, CHERANELLOOR, KOCHI-682 034.** ## **OTHER PRESENT:** **sr.gp. t.k.vipin das** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No.1412 of 2021 ..2.. ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** **Writ Appeal No.1412 of 2021** ## **-----------------------------------------------** ## **Dated this the 10[th] day of November, 2021** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 17.09.2021 in W.P.(C) No.17069 of 2021. The third respondent in the writ petition is the appellant. Parties and documents are referred to in this judgment, as they appear in the writ petition. 2. The first petitioner and the third respondent are siblings. The second petitioner is their mother. The first petitioner owns a land measuring 1.17 acres, and the second petitioner owns a land measuring 1.15 acres situated on the southern side of the land owned by the first petitioner. The access to the land of the first petitioner is through the land of the second petitioner. There is a residential building in the land of the second petitioner and the third respondent is Writ Appeal No.1412 of 2021 ..3.. residing in the said residential building. It is stated by the petitioners that on the northern side of the residential building in the land of the second petitioner, a granite basement has been constructed separating the land of the first petitioner from the land of the second petitioner. Ext.P4 in the writ petition is a rough sketch of the lands prepared by the petitioners. It is stated that the granite basement separating the lands is existing on the line AB shown in Ext.P4 sketch. 3. The case set out by the petitioners in the writ petition is that during July 2021, the first petitioner decided to start a greenhouse and a garden of plants in his land after constructing a compound wall separating his land from the land of the second petitioner; that the third respondent who does not have any right in the lands has, however, obstructed the construction and that though the petitioners preferred Ext.P5 representation to the concerned police officials seeking police aid for construction of the compound wall proposed by the first petitioner, the same is not being acted upon. The petitioners, therefore, sought a direction in the writ petition to respondents 1 and 2 namely, the Commissioner of Police, Kochi Writ Appeal No.1412 of 2021 ..4.. city as also the Station House Officer, Cheranelloor Police Station to afford necessary protection to the petitioners to enter into their lands shown in Ext.P4 sketch and to put up a compound wall on the southern boundary of the land of the first petitioner along the line AB in Ext.P4 sketch. 4. Though notice before admission was ordered to the third respondent in the writ petition on 26.08.2021, since notice was not served on the third respondent, the case was not taken up on the day fixed for the appearance of the third respondent. The case was adjourned consequently to 17.09.2021. On 17.09.2021, the third respondent entered appearance and the writ petition was allowed on that day itself directing the second respondent to ensure that the lives and the properties of the petitioners are adequately and effectively protected from every threat and intimidation from any sources, including the third respondent, but giving liberty to the third respondent to invoke his remedy, as available to him in law, if he stakes any claim in the lands in question. The third respondent is aggrieved by the said judgment and hence, this appeal. Writ Appeal No.1412 of 2021 ..5.. 5. Heard the learned counsel for the appellant, the third respondent as also the learned counsel for respondents 1 and 2, the petitioners in the writ petition. 6. The learned counsel for the third respondent submitted that though the third respondent prayed for time for filing a counter affidavit in the matter on his appearance, the learned Judge allowed the writ petition on the same day itself without affording him an opportunity to file a counter affidavit. It was argued by the learned counsel that the direction in the impugned judgment is in effect one for police aid to enter upon a property which is in the possession of the third respondent and to put up a compound wall therein. In order to show that the land referred to in the writ petition is one in the possession of the third respondent, the learned counsel placed reliance on the assertion made to that effect by the third respondent in Ext.P7 caveat lodged by him against the first petitioner before the Munsiff's Court, Ernakulam. According to the learned counsel, this court ought not have, in a case of this nature, issued a direction in the nature of one contained in the impugned judgment. Writ Appeal No.1412 of 2021 ..6.. 7. Per contra, the learned counsel for the petitioners submitted that the third respondent does not have any right in the land referred to by him in Ext.P7 caveat and he is only the occupier of the building therein. According to the learned counsel, such a person has no right to cause any obstruction to the construction activity undertaken by the first petitioner therein and there is nothing illegal in the direction issued by the learned Single Judge. 8. As pointed out by the learned counsel for the third respondent, it is seen that prior to the institution of the writ petition, the third respondent lodged a caveat before the Munsiff's Court, Ernakulam against the first petitioner seeking notice of suit or other proceedings by the first petitioner against him in respect of the property referred to therein. It is stated by the third respondent in Ext.P7 caveat that he is in exclusive possession of 1.15 acres of land in Survey No.86 of Cheranelloor Village. It is also stated by him in Ext.P7 caveat that there exists a residential building in the said land and the same is one constructed by him. Ext.P7 is one lodged by the third respondent on 4.8.2021. Earlier on 3.8.2021, the Writ Appeal No.1412 of 2021 ..7.. petitioners lodged Ext.P6 caveat against the third respondent before the very same court alleging that the third respondent is contemplating a suit against the petitioners in respect of the lands referred to in the writ petition. The petitioners do not have a case that the land referred to by the third respondent in Ext.P7 caveat is not the land referred to by them in Ext.P6 caveat and in the writ petition. In other words, from the materials on record in the writ petition itself, it is evident that there is a dispute between the petitioners on one side and the third respondent on the other side as to the possession of a portion of the lands referred to by the petitioners in the writ petition. The question is whether this court was justified in issuing the directions contained in the impugned judgment in respect of such a land. 9. In a writ petition instituted under Article 226 of the Constitution seeking a writ of mandamus to the police to provide aid and protection to the petitioner, this Court is expected and required to consider only the question as to whether there is any failure of duty on the part of the police, for the authority of the court to grant relief in such matters is Writ Appeal No.1412 of 2021 ..8.. coterminous with the failure of duty on the part of the police. In other words, if the police is shown to have failed to perform their duty, this court would remedy that, or otherwise, this court will have no option, but to dismiss the proceedings. The case on hand being a writ petition seeking a writ of mandamus to the police to provide aid and protection to the petitioners in respect of the lands covered by Ext.P4 sketch, the pointed question is as to whether the police have any duty to afford the aid and protection sought for by the petitioners from them. As noted, the aid and protection sought by the petitioners from the police is for entering upon a land, as the possession of the petitioners over the same is disputed by the third respondent, and put up a structure therein. There cannot be any doubt to the proposition that the police cannot decide disputed questions of title and possession relating to immovable properties. The said position has been reiterated by this Court time and again. Paragraph 8 of the judgment of this Court in **Ajith Associates (Pvt) Ltd. v. Commissioner of Police, Ernakulam and Others** , 2016 (3) KHC 280, wherein the said proposition has been reiterated, reads thus : Writ Appeal No.1412 of 2021 ..9.. “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.” If the police cannot adjudicate a disputed question relating to possession of a land, there is no question of failure of duty on their part. If that be so, no relief can be granted by this Court in a proceedings of the instant nature where reliefs are sought to enter upon a land and put up a structure therein, as the possession of the petitioners over the same is disputed by the contesting respondent. In other words, the learned Judge ought Writ Appeal No.1412 of 2021 ..10.. to have dismissed the writ petition _in limine_ . In the result, the writ appeal is allowed, the impugned judgment is set aside and the writ petition is dismissed. It is, however, made clear that this judgment will not preclude the petitioners from seeking appropriate reliefs in respect of the land referred to in the writ petition from a civil court of competent jurisdiction. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** ds 10.09.2021