Latha @ Premalatha v. State of Kerala and Others – WA 882 of 2023

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 12[TH] DAY OF JUNE 2023 / 22ND JYAISHTA, 1945** **WA NO. 882 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 3189/2023 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER IN WPC:** **LATHA@ PREMALATHA, AGED 54 YEARS W/O SANKARANARAYANAN, BHUSANVILLA, CHERAYA.P.O. KONGAD, PALAKKAD, PIN - 678631** **BY ADVS. SAYUJYA VIVEK MENON** ## **RESPONDENTS/RESPONDENTS IN WPC:** - **1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DEPUTY SUPERINTENDENT OF POLICE OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, PALAKKAD, PIN - 678001** - **3 THE CIRCLE INSPECTOR OF POLICE KONGAD POLICE STATION, PALAKKAD, PIN - 678631** - **4 BALADEVAN** - **S/O. SANKARAGUPTHAN, MANNATTIL KIZHAKKUMPURATH, THRIPPALAMUNDA, PERUNGODE AMSOM, KONGAD, PALAKKAD, PIN - 678631** - **5 VASAVAN** - **S/O. SANKARAGUPTHAN, MANNATTIL KIZHAKKUMPURATH, THRIPPALAMUNDA, PERUNGODE AMSOM, KONGAD, PALAKKAD, PIN - 678631** Writ Appeal No.882 of 2023 -: 2 :- - **6 KRISHNA S. GUPTA S/O. SANKARAGUPTHAN, MANNATTIL KIZHAKKUMPURATH, THRIPPALAMUNDA, PERUNGODE AMSOM, KONGAD, PALAKKAD, PIN - 678631** **7 M.K. RAVEENDRAN S/O. SANKARAGUPTHAN, MANNATTIL KIZHAKKUMPURATH, THRIPPALAMUNDA, PERUNGODE AMSOM, KONGAD, PALAKKAD,, PIN - 678631** ## **OTHER PRESENT:** **Sri. Alex M. Thombra, Sr.P.P.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **12.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No.882 of 2023 -: 3 :- **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal No.882 of 2023 -----------------------------------------------** ## **Dated this the 12[th] day of June, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is directed against the judgment dated 01.03.2023 in W.P.(C) No.3189 of 2023. The petitioner 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 case set out by the petitioner in the writ petition is that she purchased a property measuring 27.05 cents in terms of Ext.P1 sale deed, and that when respondents 4 to 6 attempted to trespass into the property, she instituted a suit as O.S.No.401 of 2018 before the Munsiff's Court, Palakkad and obtained a decree restraining respondents 4 to 6 and their henchmen from trespassing into the property, and despite the said decree, on 29.12.2022, when the petitioner attempted to cut and remove a few trees from the property, the seventh -: 4 :- Writ Appeal No.882 of 2023 respondent who is none other than the brother of respondents 4 to 6 came to the property and physically prevented the petitioner from removing trees from the property. 3. Respondents 5 and 7 entered appearance and resisted the writ petition. The stand taken by the fifth respondent is that Ext.P1 sale deed in favour of the petitioner is one executed on the strength of a Will claimed to have been executed by the father of respondents 4 to 6; that the fifth respondent and others have challenged the Will in O.S.No.738 of 2009 before the Sub Court, Palakkad and the court set aside the Will in the said proceedings and therefore, the petitioner cannot claim any exclusive right in the property or possession over the property on the strength of the sale deed. The fifth respondent has also contended that the decree stated to have been obtained by the petitioner against them in O.S.No.401 of 2018 is an _ex parte_ one, and steps have already been taken by them to set aside the said _ex parte_ decree. The stand taken by the seventh respondent is that he has not trespassed into the property nor does he intend to trespass into the property. 4. The learned Single Judge, based on the materials made available by the fifth respondent, found that Writ Appeal No.882 of 2023 -: 5 :- the Will, on the strength of which Ext.P1 sale deed has been executed in favour of the petitioner, has been set aside by a competent civil court and consequently, dismissed the writ petition taking the view that the questions that would arise for consideration in the writ petition, in the circumstances, are not questions that could be gone into by this Court in a proceedings under Article 226 of the Constitution of India. The petitioner is aggrieved by the said decision of the learned Single Judge and hence, this appeal. 5. Heard the learned counsel for the petitioner/appellant. 6. The learned counsel for the petitioner contended that inasmuch as there was no challenge against Ext.P1 sale deed executed as early as in the year 1992 from any corner whatsoever and inasmuch as the petitioner has been remitting basic tax in respect of the property all throughout, the learned Single Judge ought to have granted police protection to the petitioner to enjoy the property. It was also contended by the learned counsel that so long as Ext.P1 document holds the field, the decree in O.S.No.738 of 2009 setting aside the Will, does not affect the rights of the -: 6 :- Writ Appeal No.882 of 2023 petitioner over the property in any manner whatsoever. It was also contended by the learned counsel that the observation made by the learned Single Judge in the impugned judgment namely, “When the Will is set aside, the legality of Ext.P1 sale deed itself may come under cloud”, was unwarranted and the same is likely to affect the right of the petitioner over the property in question. It was also contended by the learned counsel that inasmuch as property has been allotted to the vendors of the petitioner also in the suit for partition in which the Will has been set aside, even assuming that the decision in the said suit would bind the petitioner, the property covered by the sale deed in favour of the petitioner is liable to be adjusted against the share of the vendors of the petitioner in the subject matter of the said suit and the learned Single Judge has failed to take note of the said aspect while dismissing the writ petition. 7. We have examined the arguments advanced by the learned counsel for the petitioner/appellant. 8. As noted, the writ petition can be construed only as one instituted based on the _ex parte_ decree obtained by the petitioner in O.S.No.401 of 2018, for otherwise, the -: 7 :- Writ Appeal No.882 of 2023 petitioner could approach only a competent civil court for an order restraining the seventh respondent from interfering with the possession of the petitioner over the property for which police protection was sought in the proceedings. This Court has deprecated time and again the practice of entertaining writ petitions for police protection in respect of immovable properties based on _ex parte_ judgments/orders obtained from civil courts [See **Adhikarath Valappil Kunhumuhammed v. Korath Illath Valappil Mammi** , 1999 SCC OnLine Ker 159]. Be that as it may, the petitioner does not dispute the fact that the Will, on the strength of which Ext.P1 sale deed was executed, has been set aside by a civil court of competent jurisdiction and the said decision has become final. As rightly argued by the learned counsel for the petitioner, inasmuch as shares have been allotted in the said suit to the vendors of the petitioner also, she can certainly claim that property covered by Ext.P1 sale deed is liable to be adjusted against the shares of her vendors. But, this is an aspect to be considered by the court which passed the decree in the final decree proceedings, having regard to the facts and circumstances of the case, and not by this Court in a proceedings under Article 226 of the Writ Appeal No.882 of 2023 -: 8 :- Constitution of India. Inasmuch as the property covered by Ext.P1 sale deed has become a co-ownership property by virtue of the decision in O.S.No.738 of 2009, the dispute raised in the writ petition can only be construed as a dispute relating to possession over an item of immovable property. There cannot be any doubt that a writ petition for police protection cannot be entertained in such a dispute which involves questions of facts to be resolved after taking evidence. In the said view of the matter, we do not find any merit in the writ appeal and the same is, accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 14.06.2023