Koroth Prabhakaran and Others v. Commissioner of Police and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 WP(C) NO.10351 OF 2022** ## **- PETITIONERS :** |1|KOROTH PRABHAKARAN, AGED 63 YEARS| |---|---| ||S/O.KELU, THILLANKERI AMSOM DESOM, P.O.ULIYIL,| ||IRITTY TALUK, KANNUR DISTRICT, PIN-670 702| |2|KOROTH SREEDEVI, AGED 58 YEARS| ||D/O.KELU, THILLANKERI AMSOM DESOM, P.O.ULIYIL,| ||IRITTY TALUK, KANNUR DISTRICT, PIN-670 702| |3|KOROTH RADHA, AGED 50 YEARS| ||D/O.KELU, THILLANKERI AMSOM DESOM, P.O.ULIYIL,| ||IRITTY TALUK, KANNUR DISTRICT, PIN-670 702| |4|KOROTH SAROJINI, AGED 48 YEARS| ||D/O.KELU, THILLANKERI AMSOM DESOM, P.O.ULIYIL,| ||IRITTY TALUK, KANNUR DISTRICT, PIN-670 702| |5|KOLOTH SREEDHARAN, AGED 46 YEARS| ||S/O.KELU, THILLANKERI AMSOM DESOM, P.O.ULIYIL,| ||IRITTY TALUK, KANNUR DISTRICT, PIN-670 702| |6|KOLOTH VALSALAKUMARI, AGED 43 YEARS| ||D/O.KELU, THILLANKERI AMSOM DESOM, P.O.ULIYIL,| ||IRITTY TALUK, KANNUR DISTRICT, PIN-670 702| |7|KOROTH SREEMATHI, AGED 40 YEARS| ||D/O.KELU, THILLANKERI AMSOM DESOM, P.O.ULIYIL,| ||IRITTY TALUK, KANNUR DISTRICT, PIN-670 702| ||BY ADV ASHWIN SATHYANATH| ## **- RESPONDENTS :** |1|THE COMMISSIONER OF POLICE| |---|---| ||OFFICE OF THE COMMISSIONER OF POLICE, TALAP,| ||KANNUR, KERALA, PIN-670 002| |2|THE DEPUTY SUPERINTENDENT OF POLICE,| ||OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE,| ||IRITTY, KANNUR, PIN-670 703| WP(C) NO.10351 OF 2022 -: 2 :- 3 THE STATION HOUSE OFFICER, MUZHAKKUNNU POLICE STATION, MALAYORA HIGHWAY, KAKKAYANGAD, KANNUR, KERALA-670 703 4 PRAKASHAN, AGED 38 YEARS S/O.ACHUTHAN, RESIDING AT THILLANKERI AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670 702 5 GANGADHARAN, AGED 50 YEARS S/O.ACHUTHAN, RESIDING AT THILLANKERI AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT, PIN-670 702 BY ADV SURENDRAN R BY SRI.T.K.SHAJAHAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.08.2022, THE COURT ON 11.08.2022 DELIVERED THE FOLLOWING: WP(C) NO.10351 OF 2022 -: 3 :- ## **JUDGMENT** ## **Dated this the 11th day of August, 2022** This writ petition is filed seeking the following reliefs :- - “i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 3 to give necessary assistance and protection to the life of the petitioners and also for keeping possession and enjoying the property delivered to them vide Ext.P4 final decree without interference from respondents 4 and 5 their men or agents. - ii) Pass an order directing respondents 1 to 3 to take immediate and effective action on Ext.P11 complaint within a period to be fixed by this Hon'ble Court.” 2. Heard the learned counsel for the petitioners and the learned Government Pleader as well as the learned counsel appearing for respondents 4 and 5. 3. The petitioners contend that they are the owners in possession of 37.5 cents of land in Re-survey No.9/4 (New : 9/156) and 66 cents of land in Re-survey No.34/4 (New : 34/116) of Thillankeri Amsom, Thalassery Taluk (now Iritty Taluk), Kannur District. It is submitted that the said properties formed part of larger extents of land over which the father of the petitioners held undivided rights. It is submitted that the larger extent of properties were subjected to partition and a final decree was passed, wherein the two plots were allotted to the share of the WP(C) NO.10351 OF 2022 -: 4 :- petitioners and the petitioners have taken delivery of the properties by executing the final decree on 24.5.2012. It is submitted that respondents 4 and 5 are the contesting parties and are obstructing the enjoyment of the properties by the petitioners by force. It is contended that even though the petitioners have approached the police, no action has been taken on the complaints. 4. A detailed counter affidavit has been placed on record by the 4[th] respondent. It is contended that the petitioners are not in exclusive possession of the properties mentioned in the writ petition and that the status of co-ownership has not been severed in accordance with law. It is submitted that the petitioners are claiming right to enjoy the properties not on the strength of Ext.P4 final decree alone but on the strength of Exts.P6, P7 and P8 documents, which were passed at a time when there was an interim stay of execution of the final decree passed by the Additional District Court, Thalassery by Ext.R4(a) order dated 17.8.2011 in I.A. No.1546/2011 in A.S. No.166/2011. It is submitted that the petitioners were parties to the appeal and that the delivery effected while the appeal was pending and orders of stay were in force is non-est in law and that the petitioners cannot raise any contentions on the strength of Exts.P6 to P8. It is further contended that respondents 4 and 5 have not caused any threat to WP(C) NO.10351 OF 2022 -: 5 :- the lives of the petitioners in any manner and they have no such intention to do so. It is submitted that the 4[th] respondent is also a co-owner of the property and that a Second Appeal has been preferred against the judgment and decree in A.S.No.166/2011 and the same is pending. 5. I have considered the contentions advanced. Ext.P4 is the final decree passed in O.S. No.168/1989 on the files of the Additional Sub Court, Thalassery. It appears that an appeal had been preferred as A.S.No.166/2011 from the final judgment and the final decree of the Sub Court, Thalassery in F.D.I.A. No.1605/93 in O.S. No.168/1989. The said appeal was dismissed by Ext.P5 judgment dated 24.6.2019. The contention of the petitioners is that pending the appeal, Exts.P6 to P8 proceedings had been issued by which delivery was effected to the petitioners of the properties allotted to their share. However, Ext.R4(a) would show that there was an interim order of execution of the final decree until further orders rendered on 17.8.2011. The learned counsel for the petitioners would contend that the existence of the interim order of stay was never pleaded by the party respondents in any of the proceedings and that the fact of such interim order was also never communicated by the party respondents to the execution court in any of the proceedings where the contesting WP(C) NO.10351 OF 2022 -: 6 :- party respondents were also parties. It is further contended that since Ext.P5 judgment has now been rendered by the appellate court, Ext.P4 now stands upheld and the petitioners would be entitled to police protection to enjoy the fruits of the decree. 6. Having considered the contentions advanced and in view of the submissions made by the learned counsel for the petitioners that as at present there is no appeal as against Ext.P5 judgment since an appeal has been preferred with a long delay and the delay has not been condoned as yet, I am of the opinion that the petitioners are entitled to the benefit of Ext.P4 final decree proceedings. Though it may be true that Exts.P6 to P8 proceedings were issued at a time when an interim order was in force, since the 4[th] respondent has no case that he was not aware of the execution of the final decree and since he did not raise any such contention before the executing court, the 4[th] respondent cannot, at this distance of time, assail the said proceedings or obstruct the enjoyment of the properties by the petitioners. This is more so, in view of the fact that the appeal in which the stay was granted was dismissed and the final decree stands confirmed. The contention that the petitioners have now to get the final decree executed all over again, according to me, is not an acceptable proposition since it was always open to the 4[th] respondent to have brought the WP(C) NO.10351 OF 2022 -: 7 :- existence of stay to the notice of the executing court and prevented the execution of the decree at the appropriate time. The Apex Court in **State of U.P. Thr. Secretary and others** v. **Prem Chopra** [Civil Appeal No.2417 of 2022] held, after considering the precedents on the point that once the proceedings, wherein a stay was granted, are dismissed, any interim order granted earlier merges with the final order and the order under stay revives. The situation would have been totally different if the judgment and decree had been reversed in appeal. In the above factual situation, I am of the opinion that the petitioners are entitled to succeed in this writ petition. The writ petition is allowed. In case of any obstruction by respondents 4 and 5 to the peaceful enjoyment of the properties allotted to the petitioners' share by Ext.P4 final decree, the petitioners may inform the Station House Officer, who shall afford adequate protection to the lives of the petitioners and their family members. This will, of course, be without prejudice to the contentions of the parties and to any competent orders to be passed in appeal as against Ext.P5. **Sd/ANU SIVARAMAN JUDGE** Jvt/2.8.2022 WP(C) NO.10351 OF 2022 -: 8 :- ## **APPENDIX OF WP(C) 10351/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE BASIC LAND TAX RECEIPT DATED 11.06.2021 WITH RESPECT TO THE LAND HAVING AN EXTENT OF 37.5.CENTS - Exhibit P2 TRUE COPY OF THE BASIC LAND TAX RECEIPT DATED 01.07..2020 WITH RESPECT TO THE LAND HAVING AN EXTENT OF 66 CENTS - Exhibit P3 TRUE COPY OF THE PRELIMINARY DECREE DATED 31.03.2005 IN OS NO.168/1989 BEFORE THE HON'BLE SUBORDINATE JUDGE, THALASSERY - Exhibit P4 TRUE COPY OF THE FINAL DECREE DATED 07.07.2010 IN F.D.I.A 1605/93 IN OS NO.168/89 OF HE HON'BLE SUBORDINATE JUDGE, THALASSERY - Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 24.609.2019 IN AS 166/2011 OF THE HON'BLE ADDL. DISTRICT JUDGE-III, THALASSERY - Exhibit P6 TRUE COPY OF THE WARRANT DATED 21.05.2012 ISSUED BY THE CENTRAL NAZIR TO GIVE DELIVERY OF THE PROPERTY TO THE PETITIONERS - Exhibit P7 TRUE COPY OF THE DELIVERY REPORT PREPARED BY THE 'AMIN' DATED 25.05.2012 - Exhibit P8 TRUE COPY OF THE DELIVERY RECEIPT DATED 25.05.2012 ISSUED BY THE PETITIONER'S AFTER GETTING DELIVERY OF THE PROPERTIES - Exhibit P9 TRUE COPY OF THE MEMORANDUM OF R.S.A 513/2020 FILED ON 28.04.2020 Exhibit P10 TRUE COPY OF THE CASE DETAILS OF R.S.A 513/2020 BEFORE THIS HON'BLE COURT Exhibit P11 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONERS TO THE 2ND RESPONDENT DATED 23.10.2021 WP(C) NO.10351 OF 2022 -: 9 :- RESPONDENT EXHIBITS Exhibit R4(a) A TRUE COPY OF THE INTERIM ORDER OF STAY DATED 17-8-2011 IN I.A NO.1546 OF 2011 IN A.S. 166/2011 ON THE FILE OF THE ADDL. DISTRICT JUDGE, THALASSERY