D. L. Rajamma v State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 5TH DAY OF APRIL 2018 / 15TH CHAITHRA, 1940** **WP(C).No. 10305 of 2018** ## **PETITIONER(S)** **D.L. RAJAMMA, W/O.RAJAGOPALAN, AGED 58, CHENNATT HOUSE, NORTH FORT GATE, TRIPUNITHURA.** **BY ADVS.SRI.T.B.THANKAPPAN** **SRI.T.T.HARIKUMAR SRI.ASHISH VIDYADHARAN** ## **RESPONDENT(S):** **1. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,** **HOME DEPARTMENT, THIRUVANANTHAPURAM, PIN-695001.** **2. NANDANAN,** - **AGED ABOUT 42 YEARS, S/O.LATE KOCHAKKAN,** **CHITTATH HOUSE, POONITHURA, ERNAKULAM DISTRICT, PIN-682038.** **3. BEENA,** **AGED ABOUT 38 YEARS, W/O.NANDANAN, CHITTATH HOUSE,** - **POONITHURA, ERNAKULAM DISTRICT, PIN-682038.** **4. THE SUB INSPECTOR OF POLICE, MARADU POLICE STATION, PIN-682304.** **R1 & R4 BY SRI.P.P.THAJUDEEN, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 10305 of 2018 (K)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF SALE DEED NO.2559/05 OF THE SRO, TRIPUNITHURA. EXHIBIT P2 A TRUE COPY OF THE DECREE IN O.S.1476/1985 DATED 24.02.1986 ON THE FILE OF MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P3 A TRUE COPY OF EXECUTION PETITION E.P.365/2010 IN O.S.1476/1985 DATED 27.09.2010. EXHIBIT P4 A TRUE COPY OF ORDER DATED 24.03.2011 PASSED BY THE MUNSIFF'S COURT.** **EXHIBIT P5 A TRUE COPY OF COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 15.10.2012.** **EXHIBIT P6 A TRUE COPY OF COMPLAINT DATED 05.12.2017 SUBMITTED BEFORE THE 4TH RESPONDENT WITH RECEIPT.** **//TRUE COPY//** **PS TO JUDGE.** jg-7/4 K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------WP(C) No.10305 of 2018 ------------------------------------------Dated this the 5[th] day of April, 2018 ## J U D G M E N T Ashok Menon, J. The petitioner is before us seeking protection to her life and property from the alleged threats of respondents 2 and 3. 2. The petitioner claims to be the owner in possession of 4 cents of property in Poonithura Village obtained as per Ext.P1 sale deed. In the year 2010, the petitioner along with her husband went to the property, and found that the fencing on the Western boundary was in a state of decay due to natural causes and for want of maintenance. They made arrangements to restore the fence. The residents on the Western side of the property, namely one Lakshmi and her son V.K.Babu restrained the petitioner from restoring the fence stating that she has no right to enter the property. Enquiries revealed that a suit was filed as OS 1476/1985 before the Munsiff's Court, Ernakulam by the predecessor-in-interest of the petitioner against one Kochakkan, who is the husband of the aforesaid Lakshmi, WPC 10305/2018 -2- and also against Lakshmi and their son Babu, seeking perpetual injunction restraining the defendants therein from obstructing the construction of fence around the property as also from using a cattle shed which was existing in the property. The suit was decreed on 24.2.1986 as per Ext.P2. Since the petitioner was a bona fide purchaser of the property, she filed an Execution Petition as EP No.365/2010 before the Munsiff's Court as Ext.P3. The above mentioned Lakshmi and Babu appeared and contested the Petition and after taking into consideration their objections, the Execution Petition was allowed in part, as per Ext.P4 order. The Advocate Commissioner deputed from the Court, with the assistance of the Village Officer, Poonithura, inspected and measured the property more than once and boundaries were demarcated by the Village officials. When the petitioner attempted to construct a compound wall with police assistance, the judgment debtors in the aforesaid suit filed OP(C) No.2307/2011 before this Court. The OP(C) was disposed of with a direction to the Advocate Commissioner already appointed, to identify the property with the assistance WPC 10305/2018 -3- of the Village Officer and a panel of Suveyors, to locate and identify the decree schedule property properly. The Commissioner's report is Ext.P5. The judgment debtors filed an application to set aside the Commissioner's report. Evidence was taken and the application was dismissed. They challenged the dismissal by filing OP(C) No.4636/2013 before this Court. That too was dismissed. The petitioner filed EA No.133/2013 seeking delivery of the decree schedule property, including the shed/building/house situated therein after removing any obstruction from the judgment debtors. The petition was allowed. The judgment debtors once again approached this Court with OP(C) No.625/2014 and that OP(C) was also disposed of together with OP(C) No.4636/2013. This Court directed EA No.133/2013 to be considered afresh, since the Advocate Commissioner was not very sure whether the building situated in the property was a cattle shed or not. Consequent to the remand, EA No.133/2013 was considered and delivery was ordered. The judgment debtors obstructed and the Execution Court ordered them to be detained in civil prison for a period of three WPC 10305/2018 -4- months and warrant was ordered to be issued. The judgment debtors have since been evading execution of the warrant shifting their residence from one place to another. Consequent to all these, when the petitioner went to inspect her property, she found that a portion of the boundary wall was demolished by the party respondents 2 and 3 who are none other than the son and daughter-in-law of the second judgment debtor. The petitioner filed Ext.P6 complaint before the fourth respondent and sought protection to complete construction of the boundary wall. No assistance was forthcoming and respondents 2 and 3 had absolutely no right over the property and they are taking law into their hands with the assistance of hooligans. The petitioner was therefore, left with no other option but to approach this Court for directions to be issued to the fourth respondent to provide adequate and necessary police protection, so as to complete construction of the boundary wall around the property, removing any obstruction that may be caused by respondents 2 and 3 and their supporters. WPC 10305/2018 -5- 3. We have heard the learned counsel for the petitioner and the learned Senior Government Pleader appearing for respondents 1 and 4. Documents perused. 4. There is not a semblance of doubt that the dispute in which the petitioner is involved with the party respondents is purely civil in nature. The petitioner claims that she has obtained all favourable orders from the Civil Court against her neighbours, namely Lakshmi and Babu. The Civil Court had also ordered confinement of the judgment debtors in civil prison, consequent to which they are absconding. It is pointed out that respondents 2 and 3 are none other than the relatives of the judgment debtors and hence they too will have to be restrained with police assistance. 5. The learned counsel for the petitioner relies on the Division Bench decision of this Court in Illyas T.A. v. State of Kerala and Others [2014 KHC 647] , wherein it is held as follows:- “ Despite the decree being passed and executed, if the defendants again trespassed into the property, the police is bound to interfere in the matter and restore possession of the property to the petitioner. Petitioner has obtained a WPC 10305/2018 -6- decree of Civil court and after delivery of property in execution proceedings the respondents have trespassed into the said property which is in gross violation of the decree passed. Persons who do not obey the judgment of the Civil court cannot insist that the petitioner should again be driven to the Civil court for recovery of possession of his property. Under such circumstances, we are of the view that the writ petition is to be allowed. In the result, this writ petition is allowed with the following directions: Respondents 2 and 3 are directed to provide adequate police protection to the petitioner to restore possession of the building in terms of Ext.P4 and they shall also ensure maintenance of law and order situation and if necessary, by evicting respondents 4 to 6 by force.” The facts in the above cited decision is not identical to the facts of the case in hand. It is not the defendants who are disobeying the orders of the Civil Court. Respondents 2 and 3 are strangers to the Civil Court decree. It may be true that they are acting under the instigation of the judgment debtors in that suit. But, there is no material before us to indicate that they are persons instigated by the judgment debtors or that they are acting at the behest of the judgment debtors against whom there is already a warrant pending. The petitioner would definitely have to approach the Civil Court for an order against the WPC 10305/2018 -7- obstructors and on the basis of such order, the party respondents can be proceeded against. It may not be proper for this Court to deploy police authorities to give protection to the petitioner to construct a compound wall, in accordance with the civil decree she has obtained. The petitioner could also seek the relief of police protection from the Civil Court, in which event, the construction could be carried out under the supervision of an Officer of the Court. Leaving open the remedy available to the petitioner to approach the Civil Court of competent jurisdiction, the Writ Petition is closed. No costs. Sd/K.VINOD CHANDRAN JUDGE Sd/ASHOK MENON JUDGE jg