E.K. Mathew v. Madhavan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.M.JOSEPH** **& THE HONOURABLE MRS. JUSTICE M.C.HARI RANI** **TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932** **WP(C).No. 32877 of 2009(D)** **----------------------------------------** ## **PETITIONER(S):** **------------------------** **E.K. MATHEW, AGED 60 YEARS, S/O.KORAH RESIDING AT ILLIKATTIL HOUSE, (INCHANATTIL) MARIKA P.O, KOOTHATTUKULAM.** **BY ADV. SRI.K.K.CHANDRAN PILLAI, SRI.THOMAS JAMES MUNDACKAL, SMT.K.U.BINI.** ## **RESPONDENT(S):** **-------------------------** **1. MADHAVAN, AGED 79 YEARS, S/O.KUNJAN @ KUTTY THANNICHUVATTIL HOUSE OLIAPURAM, THIRUMARADY P.O, MUVATTTUPUZHA.** **2. SANTHAMMA, W/O.MADHAVAN, THANNICHUVATTIL HOUSE, OLIAPURAM, THIRUMARADY P.O, MUVATTTUPUZHA. .** **3. JANARDHANAN, S/O.MADHAVAN, THANNICHUVATTIL HOUSE, OLIAPURAM, THIRUMARADY P.O, MUVATTTUPUZHA. .** **4. PADMAVATHY, AGED 68 YEARS** - **W/O.ACHUTHAN, POOVATHINKAL HOUSE OLIAPURAM, THIRUMARADY P.O, MUVATTTUPUZHA. .** **5. JIMINI, D/O. ACHUTHAN, POOVATHINKAL HOUSE, OLIAPURAM, THIRUMARADY P.O, MUVATTTUPUZHA.** **6. SAJEEVAN, D/O.DAMODARAN CHITTAMAMDATHIL HOUSE, OLIAPURAM, THIRUMARADY PO, MUVATTTUPUZHA.** **WP(C).No. 32877 of 2009(D)** ## **7. THE CIRCLE INSPECTOR OF POLICE, PIRAVOM** ## **8. THE SUB INSPECTOR OF POLICE** **KOOTHATTUKULAM.** **9. THE DEPUTY SUPERINTENDENT OF POLICE MUVATTUPUZHA.** **10. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM- 695 001.** **R7 TO R10 BY GOVT. PLEADER MR.T.K. VIPINDAS. R1 TO R3 BY ADV. SMT.C.G.PREETHA. R4 & R5 BY ADV. SRI.P.N.RAMAKRISHNAN NAIR. SRI.K.K.MOHAMMED RAVUF (ADVOCATE COMMISSIONER).** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 32877 of 2009(D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE SALE DEED NO.624/09 DATED 08/05/2009 OF THE KOOTHATTUKULAM SUB-REGISTRY OFFICE.** **EXT.P2: COPY OF THE JUDGMENT DATED 30/01/2008 IN A.S.13/02 OF THE SUB COURT MUVATTTUPUZHA.** **EXT.P3: COPY OF THE JUDGMENT IN R.S.A.858/08 DATED 29/09/2008 OF THIS HONOURABLE COURT.** **EXT.P4: COPY OF THE JUDGMENT DATED 07/02/1994 IN S.A.92/94 OF THIS HONOURABLE COURT.** **EXT.P5: COPY OF THE DELIVERY REPORT SUBMITTED BY THE AMEEN DATED 29/09/2008.** **EXT.P6: COPY OF THE COMPLAINT DATED 20/10/2009 SUBMITTED BEFORE THE 9TH RESPONDENT.** **EXT.P7: COPY OF THE COMPLAINT FILED BEFORE THE 8TH RESPONDENT DATED 10/11/2009.** ## **RESPONDENT'S EXHIBITS:** **EXT.R4(a): COPY OF THE SETTLEMENT DEED NO.1637 OF 1969 OF THE KOOTHATTUKULAM SUB REGISTRY.** **EXT.R4(b): COPY OF THE PARTITION DEED NO.1907 OF 2004 OF THE KOOTHATTUKULAM SUB REGISTRY.** **EXT.R4(c): COPY OF THE PLAINT INO.S.NO.195 OF 2008 FILED BEFORE THE SUB COURT, MUVATTTUPUZHA.** ## **EXT.R4(d): COPY OF THE COMMISSION REPORT.** **EXT.R4(e): COPY OF THE PLAN.** **EXT.R4(f): COPY OF THE ORDER PASSED IN I.A. NO.3099 OF 2008 IN O.S.NO.195 OF 2008 OF THE SUB COURT, MUVATTTUPUZHA.** **EXT.R4(g): COPY OF THE TAX RECEIPT DATED 19/05/2009.** **EXT.R3(a): COPY OF THE PLAINT IN O.S.NO.230/2009 PENDING ON THE FILE OF THE MUNSIFF'S COURT, MUVATTTUPUZHA.** **WP(C).No. 32877 of 2009(D)** **EXT.R3(b): COPY OF THE INTERIM INJUNCTION ORDER DATED 08/03/2009 IN I.A.NO.1226 OF 2009 IN O.S. NO.230/2009 OF THE MUNSIFF'S COURT, MUVATTTUPUZHA.** ## **COMMISSIONER REPORT'S EXHIBITS & ANNEXURE:** **EXT.X1: COPY OF THE NOTICE TO THE R1, 3 AND 4.** **EXT.X2: COPY OF THE EXHIBIT P1 PLAN.** **ANNEXURE-A2: COPY OF THE SURVEY PLAN** **//TRUE COPY//** **P.S. TO JUDGE** **rs** **K.M. JOSEPH & M. C. HARI RANI, JJ.** **----------------------------------------W.P.(C).NO. 32877 OF 2009 D ------------------------------------------** **Dated this the 23rd November, 2010** . ## **JUDGMENT** ## **K.M. Joseph, J.** Petitioner has approached this Court seeking the following reliefs: _“i) Issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding respondents 7 to 10 to give effective and adequate protection to the person of the petitioner and also property belonging to him and covered by Ext.P1 as prayed for in Ext.P7._ _ii) Issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding respondents 7 and 8 to investigate into Ext.P6 complaint filed by the petitioner and take appropriate action against respondents 1 and 6 and also against any other person guilty of commission of_ _**W.P.(C).NO.32877/2009 D**_ _**2**_ _offence that may be revealed in the investigation.”_ 2. Briefly put, the case of the petitioner is as follows: Petitioner is the absolute owner and is in possession and enjoyment of 26.93 Ares equivalent to 66.775 cents of property comprised in Survey Nos.203/2/1, 202/116 and 202/15/1 of Thirumarady Village in Muvattupuzha Taluk vide Ext.P1 Sale Deed executed on 8.5.2009. Smt. Kausalya from whom the petitioner purchased the property, instituted OS.No.510/88 before the Munsiff Court, Muvattupuzha. The first respondent herein was the defendant in that Suit. Subsequently, additional defendants 2 to 6 were impleaded. The Suit was decreed. The preliminary decree was challenged and finally Smt. Kausalya filed an application for passing final decree and a Commissioner was appointed. She filed an application for delivery of the property set apart to her and Ext.P5 is the delivery report of the Ameen and she came into possession of the property. Smt. Kausalya got delivery _**W.P.(C).NO.32877/2009 D**_ _**3**_ of the property covered by Ext.P1 and another item of paddy field in the year 2008 after a legal battle extending to about twenty years. The first respondent caused filing of another Suit through respondents 4 and 5 stating that the property delivered over to Smt. Kausalya and covered by Ext.P1 purchased by the petitioner belongs to them. Though injunction was sought, it was not granted. First respondent filed another Suit for declaring that the partition is void, etc. It is stated that respondents 1 to 6 with the connivance of certain others have stolen certain trees. Petitioner filed Ext.P6 and is before us. 3. Respondents 4 and 5 have filed a Counter Affidavit, producing Exts.R4(a) to R4(g). In brief, their case is as follows: An extent of 1 acre and 87 cents of property in Survey No.203/2/2 was obtained by the fourth respondent and her husband as per Ext.R4(a) Settlement Deed of 1969. The fifth respondent _**W.P.(C).NO.32877/2009 D**_ _**4**_ has obtained an extent of 42.500 cents as per Ext.R4(b) Partition Deed of 2004. The properties of the petitioner and Smt. Kausalya lie on the southern side of the aforesaid 1 acre and 28.250 cents belonging to respondents 4 and 5. Recently, they came to know that Kausalya and the first respondent in collusion with the petitioner filed an application for amendment of the decree and also created certain documents with a view to annex a portion of the property belonging to respondents 4 and 5 under the pretext that there was shortage of the extent in the property sought to be partitioned. In the year 2008, when the petitioner made attempt to destroy the old and existing boundary kayyalas situated on the southern side of their property, cut and remove the trees and annex the same with his property, respondents 4 and 5 enquired with the petitioner and he informed them that he has purchased some property from Kausalya. It is stated that due to their timely _**W.P.(C).NO.32877/2009 D**_ _**5**_ intervention, the petitioner could not succeed. But, when Kausalya and the first respondent again attempted to trespass upon their property, they filed OS.No.195 of 2008 before the Sub Court, Muvattupuzha. Exts.R4(d) and R4(e) are produced as the Commission Report and Plan in that Suit. Ext.R4(f) is the injunction order passed by the Sub Court against the petitioner, the first respondent and Kausalya restraining them from destroying the boundaries of the properties and trespassing into the same. Till date, the respondents have not filed any Counter Affidavit to that petition. Ext.R4(g) is a tax receipt. Other allegations are also made. It is further stated that the Writ Petition is filed to snatch away their property under the pretext that the property is delivered and the petitioner is in possession. The Counter Affidavit is dated 28.11.2009. No Reply Affidavit is filed. Respondents 1 to 3 also have filed a Counter Affidavit. _**6**_ _**W.P.(C).NO.32877/2009 D**_ 4. This Court as is apparent from the interim orders passed, appointed a Commissioner. We notice that the Court directed resolution of the dispute with the intervention of the Advocate Commissioner by identifying the property and finding out a solution so that the pending litigations can be solved. This Order is dated 23.12.2009. The Commissioner has filed a Report dated 15.2.2010. Therein, the Commissioner noted as follows: _“5.The dispute is with respect to item No.1 which as per the plan in the final decree proceedings and as per the delivery report is comprised in R.S.No.203/2/1. The contention of the respondents 4 and 5 is to the effect that major portion of the property that is now delivered as item No. comprised in R.s.203/2/2 which exclusively belong to them and their predecessors-ininterest and which does not belong to the predecessorin-interest, the respondents 1 to 3 and the vendor of the petitioner. Both parties are relying upon partition deeds between those families and no documents were produced by either side. Both sides submitted that a_ _**W.P.(C).NO.32877/2009 D**_ _**7**_ _Suit as O.S.No.195 of 2008 is pending before the Munsiff Court, Moovattupuzha. The petitioner herein, who is the 3[rd] respondent in the above suit submitted that he has obtained certified copy of documents showing that the claim of the respondents 4 and 5 are having rights only over lesser extent and that he will be producing the same before the Munsiff Court, Moovattupuzha._ _6. The property were measured and identified with the help of the Taluk Surveyor, Moovattupuzha in accordance with the Survey records and Field Measurement Book. The Taluk Surveyor stated that as per the Survey records, item No.203/2 is lying as a single plot without any survey sub division either as 203/2/1 or as 203/2/2. The Taluk Surveyor further submitted that the survey sub division was made when partition deeds were prepared by the respondents 1 to 3 and the vendor of the petitioner in their partition deed and respondents 4 and 5 and others in their partition deed in their respective families and the sub divisions might have been made in the records of transfer of registry for the purpose of collecting land tax. In Sy.No.203/2, there is sub divisions as per the_ _**W.P.(C).NO.32877/2009 D**_ _**8**_ _Village records and therefore Sy. Nos.203/2/1 and 203/2/2 cannot be located. A true copy of the Survey plan is produced herewith and marked as Annexure A2._ _7. Both sides were not ready to forgo even in inch of land over which they are claiming right, title and possession. Both sides submitted that dispute is now pending before the Hon'ble Munsiff Court, Moovattupuzha and let the matter be decided there. Therefore, there is no scope for any mediation.”_ He has filed an interim report also. 5. We heard Shri K.K. Chandran Pillai, learned senior counsel, Shri Viswanathan, learned counsel for respondents 4 and 5 and the learned counsel for respondents 1 to 3, besides the learned Government Pleader. 6. Learned senior counsel for the petitioner reiterates his case. According to him, it is after a long drawn battle spanning about twenty years between the predecessor in interest of the petitioner, namely Kausalya and her brother and other defendants _**W.P.(C).NO.32877/2009 D**_ _**9**_ that the property came to be delivered to Kausalya. Even the delivery was attended by the not so unusual dilatory tactics to be found in execution proceedings and it had its culmination in the plaintiff/decree holder being compelled to seek assistance of the police in the delivery of the property. It is this property which was actually delivered over to the petitioner, the enjoyment of which is sought to be obstructed by the party respondents. As far as petitioners 1 to 3 and 6 are concerned, they are bound by the decree. Respondents 4 and 5, though not parties to the decree, he would submit that they have absolutely no right to obstruct the enjoyment of the property actually delivered over to the predecessor in interest of the petitioner. He would submit that the proceedings of the court which have attained finality must be honoured and respected and respondents 4 and 5 should not be permitted by filing a civil suit and pointing out the pendency of the Suit or passing of interim order to raise a contention that they can obstruct even the enjoyment of the property delivered by a court of _**10**_ _**W.P.(C).NO.32877/2009 D**_ law. Learned senior counsel would also submit that this Court has passed an interim order after hearing all the parties and after considering all aspects and if the order is vacated, the petitioner will be put to grave injury and it may give rise to law and order situation. 7. Learned counsel for respondents 1 to 3 would submit that they have no objection to the interim order being continued subject to the result of the litigation launched by them in the civil court. 8. Shri Viswanathan, on the other hand, appearing on behalf of respondents 4 and 5 would submit as follows: They were not parties to the partition suit. They were not parties to the delivery proceedings. According to him, the property in the possession of his clients is supported by documents dating back to the partition deed of 1969. It is further submitted that the matter is pending in a civil suit and an injunction order has been granted by the civil court and that is not vacated. It is his case that actually it is made to appear as if the property of respondents 4 and _**11**_ _**W.P.(C).NO.32877/2009 D**_ 5 is also delivered, but actually, delivery was not taken and it is not a matter for this Court to decide. He would also take us through the Report of the Advocate Commissioner appointed by this Court which we have already referred to. 9. Learned Government Pleader submits that this may not be an appropriate case where, in the exercise of the writ jurisdiction, this Court can direct police protection, having regard to the facts situation prevalent. 10. A writ of mandamus directing police protection in a case where there is a civil dispute, is normally not entertained unless there has been an adjudication which has become final as between the parties. As far as respondents 4 and 5 are concerned, at any rate, admittedly they were not parties to the earlier proceedings initiated by Kausalya when the property was delivered. On the one hand, it is the case of the petitioner that there was physical delivery of the property to Kausalya of the extent in the Survey Number as was purported to be done, but this is disputed by the learned _**12**_ _**W.P.(C).NO.32877/2009 D**_ counsel for respondents 4 and 5. Therefore, as to what is the property which was actually delivered over and as to whether respondents 4 and 5 are in possession of which property and which is the property which is actually in the possession of the petitioner would, in our view, appear to be a matter of dispute and we must further notice that there is a civil suit pending before the Sub Court, Muvattupuzha. An order of injunction was also obtained by respondents 4 and 5 against the petitioner. We cannot possibly pass an order of police protection which would have the effect of directing police to violate the order of injunction. It is not as if the petitioner cannot approach the civil court itself and seek injunction against respondents 4 and 5 either in the pending civil suit or in a separate civil suit. We must also remind ourselves that this is not one of the cases where the petitioner is faced with a mass of people who are incapable of being identified without the semblence of any right (See the Judgment in M/s. Harrisons Malayalam Ltd. v. State of Kerala – 2007 (4) KLT 540). In other words, the petitioner does _**13**_ _**W.P.(C).NO.32877/2009 D**_ have an alternate remedy also which cannot be considered to be not efficacious. 11. In the light of the above discussion, the inevitable conclusion that we arrive at is that while it is true that the petitioner was enjoying an interim order passed by this Court, since we think that the fact situation does not justify the continuance of the order of police protection and we also have the final Report dated 15.2.2010 which we have adverted to, we feel that the petitioner cannot claim relief and the petitioner has to be relegated to pursue his remedy before the competent civil court. We record the submission of the learned counsel appearing for respondents 1 to 3 that respondents 1 to 3 have no objection in the order continuing subject to the decision to be taken by the civil court. In the light of the said submission, the interim order is made absolute as against respondents 1 to 3 alone. As against the party respondents other than respondents 1 to 3, the Writ Petition will stand dismissed. But, however, we make it clear that this will be without prejudice _**W.P.(C).NO.32877/2009 D**_ _**14**_ to the right of the petitioner to seek appropriate reliefs before the competent civil court and when the petitioner seeks such reliefs, such court shall proceed to decide the matter untrammeled by anything contained in this Judgment. Sd/= **K.M. JOSEPH, JUDGE Sd/= M.C. HARI RANI, JUDGE kbk. //True Copy// PS to Judged**