Kallai Abu v. Sub-Inspector of Police, Malappuram; Inspector of Police, Malappuram; District Police Chief, Malappuram; N. Sreedevi; Sarojini; Parvathi; Sarada; Nalini; Padmini

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL** ## **SATURDAY, THE 17TH DAY OF NOVEMBER 2012/26TH KARTHIKA 1934** ## **WP(C).No. 12588 of 2012 (W)** **---------------------------** ## **PETITIONER(S):** **------------------------** **KALLAI ABU, AGED 63 YEARS, SON OF KUNHAHAMMED, KALLAI HOUSE, ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM DISTRICT.** ## **BY ADV. SRI.R.RAJESH KORMATH** **RESPONDENT(S): ---------------------------** **1. THE SUB INSPECTOR OF POLICE, MALAPPURAM, UP-HILL P.O., MALAPPURAM, PIN-676 505.** **2. THE INSPECTOR OF POLICE, MALAPPURAM, UP-HILL P.O., MALAPPURAM, PIN - -676 505.** **3. THE DISTRICT POLICE CHIEF, MALAPPURAM, UP-HILL P.O., MALAPPURAM- PIN-676 505.** ## **4. N.SREEDEVI,** **DAUGHTER OF NAMBOLA NARAYANAN, `NAMBOLA HOUSE', ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM, PIN-676 505.** ## **5. SAROJINI,** **DAUGHTER OF NAMBOLA NARAYANAN, `NAMBOLA HOUSE', ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM DISTRICT, PIN-676 505.** ## **6. PARVATHI,** **DAUGHTER OF NAMBOLA NARAYANAN, `NAMBOLA HOUSE', ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM DISTRICT, PIN-676 505.** **Kss** **..2/-** **..2....** ## **WPC.NO.12588/2012 W** ## **7. SARADA,** **DAUGHTER OF NAMBOLA NARAYANAN, `NAMBOLA HOUSE', ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM DISTRICT, PIN-676 505.** ## **8. NALINI,** **DAUGHTER OF NAMBOLA NARAYANAN, `NAMBOLA HOUSE', ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM DISTRICT, PIN-676 505.** ## **9. PADMINI,** **DAUGHTER OF NAMBOLA NARAYANAN, `NAMBOLA HOUSE', ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM DISTRICT, PIN-676 505.** **R1 TO R3 BY SR.GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR R4 TO R9 BY ADV. SRI.VINOD VALLIKAPPAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-11-2012, THE COURT ON 17/11/2012 DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.12588/2012 W** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1- TRUE COPY OF THE JUDGMENT DATED 12.8.2003 IN OS NO.169 OF 1995 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANJERI.** **EXHIBIT P2- TRUE COPY OF THE DECREE DATED 12.8.2003 IN OS NO.169 OF 1995 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANJERI.** **EXHIBIT P3- TRUE COPY OF THE JUDGMENT DATED 12.1.2011 IN AS NO.133 OF 2003 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE (ADHOC-II), MANJERI.** **EXHIBIT P4- TRUE COPY OF THE DECREE DATED 12.1.2011 IN AS NO.133 OF 2003 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE (ADHOC-II) MANJERI.** **EXHIBIT P5- TRUE COPY OF THE JUDGEMENT DATED 8.8.2011 IN RSA NO.542 OF 2011 ON THE FILE OF THIS HONOURABLE COURT.** **EXHIBIT P6- TRUE COPY OF THE COMPLAINT DATED 14.5.2012 PREFERRED BY THE PETITIONER BEFORE THE FIRST RESPONDENT-INSPECTOR OF POLICE.** **EXHIBIT P7- TRUE COPY OF THE RECEIPT DATED 14.5.2012 ISSUED BY THE SECOND RESPONDENT.** **EXHIBIT P8- TRUE COPY OF THE RECEIPT DATED 14.5.2012 ISSUED BY THE THIRD RESPONDENT.** **EXHIBIT P9-TRUE COPY OF THE PLAINT DATED 01/06/1995 IN O.S.NO.169 OF 1995 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANJERI.** **RESPONDENTS' EXHIBITS:** **N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## K.M. JOSEPH & K. HARILAL **JJ. =====================** WP(C) NO. 12588 OF 2012 **=====================** Dated this the 17[th] day of November 2012 JUDGMENT ## **K.Harilal,J.** Briefly put, the averments in the writ petition are as follows :- The petitioner purchased 12 cents of property from one Smt.Sarojini, the predecessor in title by virtue of registered Assignment Deed No.21/1993 of Sub Registrar's Office, Malappruam. After purchase of the property, when the petitioner started to transport materials through the property of the petitioner to construct a house, Nambola Narayanan, the predecessor in interest of respondents 4 to 9 herein obstructed the same and that culminated in intervention of police. Thereupon Nambola Narayanan, the predecessor in interest of the respondents filed O.S.No.169 of 1995 on the file of the Munsiff Court, Manjeri against the petitioner for restraining the petitioner from cutting upon a WPC 12588/2012 2 way through item Nos. 2 and 3 of the plaint schedule property, entering into the said property or using the said property as a way or plying vehicles through the said property. A mandatory injunction was also sought for in the suit, to restore the demolished portion of the compound wall on the eastern side of item Nos. 2 and 3 of the plaint schedule property. On the death of Nambola Narayanan, respondents 4 to 9 herein were impleaded in the suit as supplemental plaintiffs. The contention of respondents 4 to 9 was that the property was orally entrusted to Nambola Narayanan by one Velayudhan and Govindan with whom the property was outstanding on tenancy rights. It was contended that jenmam rights of the properties which was vested in the Government was obtained by Nambola Narayanan by virtue of Purchase Certificate issued to him in the year 1979 from the Land Tribunal, Malappuram and that Nambola Narayanan was having jenmam rights and possession over item No. 3 of the plaint schedule property. WPC 12588/2012 3 It was also contended that item No.3 of the plaint schedule property was taken by entrustment from Velayudhan and Govindan and as a way to the burial ground situate on the south. The dispute in the suit was with respect to item No.3 of the plaint schedule property in the suit. The petitioner contended that Nambola Narayanan, the predecessor in interest of respondents 4 to 9 has got neither title nor possession over item No.3 of the plaint schedule property. It was also contended that item No.3 of the plaint schedule property is taken in by Assignment Deed in favour of the petitioner. The suit was decreed as prayed for by Ext.P1 Judgment dated 12.08.2003. The petitioner preferred an appeal before the District Court, Manjeri and the appeal was allowed by Ext.P3 Judgment and Ext.P2 decree of the trial court was set aside. The respondents 4 to 9 preferred 2[nd] appeal before the High Court. It was also dismissed by Ext.P5 Judgment. 2. Now the petitioner wanted to construct a compound WPC 12588/2012 4 wall and to erect a gate in item No.3 of the plaint schedule property. Coming to know of this, respondents 4 to 9 preferred a complaint before the 1[st] respondent, Sub Inspector of Police, alleging that the petitioner along with his wife and son trespassed into the property of respondents 4 to 9. The petitioner was summoned to the police station by the 1[st] respondent. The petitioner apprised true facts before the 1[st] respondent. The petitioner filed a complaint against respondents 4 to 9, sought for police protection in view of the Judgment of this Court, dismissing the respondents' claim over the property and accepting the petitioner’s right over the property. Respondents 1 to 3 were bound to afford police protection to carry out works in the property in view of Exts.P3 and P5 Judgments. But they did not give protection so far for the construction in the petitioner’s property and the threat is still continuing. Therefore the petitioner prayed for order of this Court, directing respondents 1 to 3 to afford adequate police WPC 12588/2012 5 protection to carry out construction works in item No.3 property scheduled to Ext.P2 decree. Respondents 4 to 9 filed a counter affidavit, inter alia contending that the petitioner herein is trying to encroach into respondents' property, which lies adjacent to petitioner’s property and constructed a wall which is being objected to by respondents 4 to 9. Even though the 2[nd] appeal was dismissed, respondents 4 to 9 preferred a leave before the Honourable Supreme Court of India which is to be taken up for admission. The proper remedy for the petitioner is to file a suit for demarcation of boundaries and after that he can construct a compound wall. The police authorities cannot adjudicate the dispute as regards the boundary of the property and the remedy of the petitioner is to approach the Civil Court. The petitioner seeks to circumvent due legal process by approaching this Court, seeking protection from the police for constructing a wall which if allowed, would encroach into their property. WPC 12588/2012 6 3. We heard Sri.Rajesh.R.Kormath, the learned counsel for the petitioner and Sri.Vinod Vallikappan, the learned counsel for respondents 4 to 9, and the learned Government Pleader. 4. Sri.Rajesh.R.Kormath advanced arguments in support of the contentions raised in the writ petition. His main argument is that in view of Ext.P5 Judgment passed by this Honourable Court, dismissing the claim raised by respondents 4 to 9 over the property involved in this writ petition, the petitioner is entitled to get police protection to make constructions including boundary wall in the above said property. Respondents 1 to 3 are bound to give police protection in view of the Judgment passed by this Court, but they are staying away from discharging their bounden duty under law. Therefore the petitioner is entitled to get direction from this Honourable Court to grant police protection to carry out construction work in the property mentioned in the writ petition. WPC 12588/2012 7 5. Per contra, the learned counsel for respondents 4 to 9 contended that this is purely a civil dispute for which the police authorities have no right to interfere and therefore their stand is absolutely prefect under law. Under the guise of construction in the said property, the real intention of the petitioner is to encroach into respondents' property and put up a boundary wall. Therefore the petitioner has to approach the Civil Court for getting proper remedy if they are aggrieved. There is no decree declaring petitioner’s right over the property. The decree rejected their claims only. 6. We have given our anxious considerations to the rival submissions made at the Bar. The question to be considered is whether the petitioner is entitled to get an order, directing respondents 1 and 3 to afford police protection to carry out construction works including boundary wall in item No.3 property scheduled to Ext.P2 decree in view of Ext.P5 Judgment of this Court, which WPC 12588/2012 8 ## attained finality according to him. 7. In the counter affidavit filed by respondents 4 to 9 , it is stated that they have preferred a leave petition before the Supreme Court, against Ext.P5 Judgment and the same has to come up for admission. Ext.P5 Judgment was passed on 08.08.2011. But no records have been produced to show that special leave petition is pending before the Supreme Court. Therefore we are inclined to decide the matter on the basis of the materials available on record. 8. Going by Ext.P5 judgment, the claim of party respondents 4 to 9 was that they have title and possession over item No.3 property, scheduled to Ext.P2 decree by virtue of an oral lease and Purchase Certificate issued subsequently. By Ext.P3 Judgment, the above claim raised by party respondents 4 to 9 has been negatived by the 1[st] Appellate Court. Therefore, as on today, respondents 4 to 9 have neither title nor possession over item No.3 property, scheduled to Ext.P2 decree. Therefore we are of the opinion WPC 12588/2012 9 that respondents 4 to 9 have no right to cause any kind of obstruction against enjoyment of the said property. 9. In the counter affidavit filed by respondents 4 to 9, they contended that the petitioner is trying to encroach into their property, which is lying adjacent to Ext.P2 decree property and to construct a compound wall in the boundary which could not be identified. Thus the boundary stands disputed. So they have not raised any objection against other construction. In such circumstances, we are inclined to take a decision in the case of police protection for construction of the compound wall in view of the legal position settled by the Division Bench of this Court. Compound wall is a construction to be made in the boundary line of both properties. Boundary can be fixed on the basis of measurements to be made in the property in accordance with title deeds and survey plan. Unless boundary is fixed in accordance with the method prescribed under law, no construction can be made in the boundary, particularly when WPC 12588/2012 10 adjacent property owners object or dispute construction at the boundary. No doubt, police cannot do this work. Fixation of boundary line is a work which is to be done by a competent Surveyor under the supervision of an Advocate Commissioner to be appointed by a competent Civil Court in a suit for fixation of boundary. Thus proper remedy lies in the Civil Court alone. In the decision reported in _**Devadasan v. State of Kerala [2005(3)KLT 739]**_ , this Court held that : In cases where a person wants to put up a boundary wall, the first question to be determined is which exactly is the line through which a boundary wall is to be put up. In many cases, the respondents may not have any objection in the petitioner constructing a boundary wall. The objection will be regarding the dividing line through which the same is to be put up. When there is dispute regarding the boundary line separating the two properties, if protection is granted to one of the parties to put up a boundary with police assistance, that will be nothing but an abuse of process of law. So the proper course open to the petitioner is to approach the Civil Court and get the dividing line fixed first. Even if such a line is fixed at the trial side while putting up of the boundary, it is to be ensured that the boundary is put up through the line which was fixed in the decree. That can be ensured only by deputing a WPC 12588/2012 11 commissioner with the assistance of a competent surveyor. If the person against whom such a decree is passed causes further obstruction, that can be brought to the notice of the Civil Court and the Civil Court has got every power to issue direction to the police to afford protection in executing the decree. There may be cases in which a person obtains a decree for declaration and injunction. In such cases the respondent cannot be allowed to contend that the petitioner is not in possession of a property. But where exactly the dividing line of that property from the neighbouring property is an issue which can be decided only by a competent Court. So even if a person obtains a decree declaring his title and possession, no police protection can be granted to him to put up the boundary of that decree schedule property without the dividing line fixed by the competent Court first. Even if there is an order of injunction restraining a party from entering into the property, this Court shall not invoke the powers under Art.226 by ordering police protection. The party who obtains such a decree can approach the Civil Court for enforcement of that decree. The statutory power given to the Survey officer is only to fix the boundary. The boundary so fixed is not final, that is subject to the result of the suit. Putting up of boundary is a mater to be resolved only through a competent Civil Court. Merely because the Survey and Boundaries Act confers power on the Survey Officer to fix a boundary, it does not mean that a party is entitled to put up boundary through the line so fixed by the Survey Officer with police help ignoring the dispute raised by the opposite side. 10. What this Court can order, direct or compel in WPC 12588/2012 12 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. Neither the Criminal Procedure Code nor the Police Act or any of the statute governing the act or duties of police, for the time being in force enjoins the police to render police assistance or police protection for exercising a disputed civil right over the property. No doubt, if it is entrusted to police, the consequence will be disastrous. It will be dangerous, if this Court under writ jurisdiction allows the police to fix boundary line so as to put up compound wall on a disputed boundary. 11. The learned Government Pleader referring to Sections 4(j) and 63(c) & (d) of the Kerala Police Act,2011 pointed out that the above provisions cast duty upon the police to interfere with disputes, even if it is civil in nature, to prevent and resolve disputes and conflicts, which may result in crimes. WPC 12588/2012 13 Section 4(j) of the Kerala Police Act reads as follows: “4.The functions of the police.-The police officers shall, subject to the provisions of this Act,perform the following functions, namely,- (j)to strive to prevent and resolve disputes and conflicts which may result in crimes.” Sections 63(c) and (d) of the Police Act read as follows: “63. Police action in disputes which may lead to cognizable offence.- If anyone brings to notice of the circumstance of a dispute between any individuals or groups which if not resolved at the earliest is likely to culminate into a cognizable offence, the Station House Officer shall take steps,- (c) to encourage individuals or groups involved in the dispute to redress the dispute through mutual discussion or through mediation; or (d) to advise individuals or groups to approach the Competent Court having jurisdiction for redressing the dispute.” 12. We have given our solicitous consideration on the above Sections of the New Police Act,2011. As per Section 4(j) of the Kerala Police Act, 2011, the Police have statutory duty to strive to prevent and resolve disputes WPC 12588/2012 14 and conflicts which may result in crimes. But obviously Section 63(d)indicates the limits upto which police can interfere in civil disputes and police cannot go beyond that limits. We are of the opinion that the power to resolve disputes and conflicts under the provision is not intended to confer authority to adjudicate civil disputes and conflicts. The resolution of civil disputes is a matter absolutely within the domain of civil court only. To sum up what is intended under Sections 4(j) and 63(c) & (d) of the Police Act,2011is not an adjudication process on civil disputes. 13. In view of the above settled legal principle, we have considered Ext.P6 complaint dated 14/5/2012 submitted before the first respondent. In Ext.P6 complaint, the petitioner has demanded police protection for construction of a compound wall in the disputed boundary, for which no protection can be given by the police under WPC 12588/2012 15 law, unless the disputed boundary is fixed by a Civil Court. So, we are not inclined to grant the same relief under the writ jurisdiction. 14. Consequently, the petitioner is relegated to approach the Civil Court for the relief which we have declined in this writ petition. In the result, this writ petition is disposed of accordingly. ## **Sd/-** ## **K.M. JOSEPH, JUDGE** **Sd/-** **K. HARILAL,JUDGE** ks True copy ## P.S.to Judge WPC 12588/2012 16