NARASIMHA SHENOY v. SUPERINTENDENT OF POLICE (DISTRICT POLICE CHIEF), ERNAKULAM; CIRCLE INSPECTOR OF POLICE, ERNAKULAM CENTRAL STATION; SUB INSPECTOR OF POLICE, ERNAKULAM CENTRAL STATION; MRS. SEETHA MOHANAN

W.P.(C).No.7271/22 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 WP(C) NO. 7271 OF 2022** ## **PETITIONER:** NARASIMHA SHENOY AGED 78 YEARS S/O. LATE NARAYANA SHENOY, 40/5695, KALARIKKAL HOUSE, JEW STREET, BEHIND PADMA THEATRE, ERNAKULAM, KOCHI, PIN - 682035. BY ADVS. RAJU JOSEPH SINDHU RAVICHANDRAN ## **RESPONDENTS:** 1 THE SUPERINTENDENT OF POLICE (DISTRICT POLICE CHIEF), ERNAKULAM, ALUVA - 683101. 2 THE CIRCLE INSPECTOR OF POLICE, ERNAKULAM CENTRAL STATION, PIN - 682018. 3 THE SUB INSPECTOR OF POLICE, ERNAKULAM CENTRAL STATION, PIN - 682018. 4 MRS. SEETHA MOHANAN AGED 73 YEARS D/O. LATE NARAYANA SHENOY, 40/5695, KALARIKKAL HOUSE, JEW STREET, BEHIND PADMA THEATER, ERNAKULAM, KOCHI, PIN - 682035. W.P.(C).No.7271/22 2 BY ADVS. DINESH R.SHENOY A.JOSEPH GEORGE EBIN MATHEW P.ROHIT PREMANANDAN SHENOY SILESH S. PRABHU SWATHI R. KRISHNAN ## **OTHER PRESENT:** T.K.SHAJAHAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2022, THE COURT ON 18.05.2022 DELIVERED THE FOLLOWING:- W.P.(C).No.7271/22 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C).No.7271 of 2022** **= = = = = = = = = = = = = = = = Dated this the 18[th] day of May, 2022** ## **JUDGMENT** - 1.This writ petition is filed with the following prayers:- - “i) To issue a Writ of Mandamus or order or direction, directing the respondents 1 to 3 to provide adequate and effective police protection to the petitioner to evict the illegal trespassers to the property owned by the petitioner. - ii) To issue a Writ of Mandamus or order or direction, directing the respondents 1 to 3 to register crime against respondent No.4 and their men for unlawful trespass and criminal intimidation and also for taking law into their hands.” - 2.Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the 4[th] respondent. - 3.It is submitted by the learned counsel for the petitioner that the father of the petitioner had executed a registered Will bequeathing properties to his children. A suit was filed by the 4[th] respondent for partition, declaration and permanent W.P.(C).No.7271/22 4 prohibitory injunction. The suit was dismissed and the counter claim was partly allowed by the Subordinate court directing the plaintiff/ judgment debtor, 4[th] respondent herein, to hand over vacant possession of the eastern most room of item No.1 of the plaint schedule property to the petitioner. The judgment and decree was challenged before this Court in Regular First Appeal which was dismissed. Such vacant possession was also duly handed over on 30.05.2016 as evident from the Delivery Kachit. It is stated that in the year 2019 the petitioner fell ill and was taken to his sister’s house at Trichur. The 4[th] respondent and her son thereafter trespassed into the property and when the petitioner required them to vacate the building he is being threatened by the 4[th] respondent and her children. It is stated that in view of Exhibits P2, P3 and P4 the 4[th] respondent has absolutely no manner of right to reside in the property and is liable to be ousted by due process of law. - 4.The learned counsel for the petitioner places reliance on the decisions of this Court in **Illyas T.A v. State of Kerala and** W.P.(C).No.7271/22 5 **others** [2014 KHC 647] to contend that where a suit for recovery of possession has been decreed and the decree was executed by delivery of property to the plaintiff, persons who violate the decree cannot insist that the plaintiff should again approach the civil court for recovery of possession of his property. Police protection was directed to be granted in the said matter. In **Jithesh v. State of Kerala and others** [2013 KHC 674], also a Division Bench of this Court considered the question of issuance of police protection and held that even if a civil remedy is available to a party in respect of a property right, if the Court feels that driving the party to a civil court would be ineffective and unnecessary, the writ court can direct police protection to be granted. In **Baby v. Deputy Superintendent of Police, Attingal and others** [2019 (4) KHC 660] also it was held that jurisdiction under Article 226 can be invoked when it is seen that orders of Civil Court are openly flouted by contesting respondents. 5.A counter affidavit has been placed on record by the 4[th] respondent. It is admitted that the partition suit was W.P.(C).No.7271/22 6 dismissed and that pursuant to Ext.P3 judgment in RFA, the 4[th] respondent had been evicted from the premises. However, it is stated that the petitioner himself had called back the 4[th] respondent and required them to reside in his house since 31.05.2016. It is submitted that the petitioner is a bachelor and that the writ petition is filed at the instance of another sister of the petitioner and the 4[th] respondent with the intention of evicting the 4[th] respondent from the property where they were staying with the petitioner only to grab the property of the petitioner. - 6.The learned counsel for the 4[th] respondent relied on the decisions of the Apex Court in **Thansingh Nathmal and others v. Superintendent of Taxes, Dhubri and others** [1964 KHC 576] to contend that the writ court should not entertain a writ petition where an alternate remedy is available. The decision of the Apex Court in **State of M.P. And Others v. Bhailal Bhai and others** [1964 KHC 521] is also relied on. The decisions of Division Benches of this Court in **Shaji M.K and Another v. State of Kerala and** W.P.(C).No.7271/22 7 ## **others** [2018 (3) KHC 69] and in **Raman and others v. State** **of Kerala and others** [2019 (1) KHC 169] are relied on to contend that where civil dispute arise between the parties the matter is to be relegated to the civil courts to adjudicate and should not be decided in a writ petition. 7.I have considered the contentions advanced. It is not in dispute before me that the 4[th] respondent had filed a suit for partition of the property which was dismissed by Ext.P2 judgment. An RFA filed by the 4[th] respondent was also dismissed and the 4[th] respondent was evicted from the property as evidenced by Ext.P4 kachit in execution proceedings. The contention now raised is that the 4[th] respondent had been required by the petitioner in the writ petition to come back and live in the property and that this writ petition is not filed with the knowledge and free will of the petitioner and is at the instigation of his sister. In the above circumstances, and in view of the fact that the delivery of the property had been obtained by the petitioner after evicting the 4[th] respondent as is evident from Exhibit P3 and W.P.(C).No.7271/22 8 P4, I am of the opinion that the petitioner cannot be required to file a fresh suit to evict the 4[th] respondent, who has been held by the competent civil courts to be not entitled to any proprietory interest in the property. 8.I notice that Exhibit P5 written complaint has been submitted by the petitioner before the Station House Officer requiring police protection to enable him to vacate the building criminally occupied by the 4[th] respondent. In the above view of the matter, I am of the opinion that the written complaint made by the petitioner is liable to be acted upon by the Station House Officer. The Station House Officer shall go to the residence of the petitioner and take a statement from him verifying whether the writ petition and the steps for evicting the 4[th] respondent are being taken at his instance and with his proper knowledge. If so, the Station House Officer shall provide adequate protection to the petitioner to carry out the directions contained in Exts.P2 and P3 judgments. The necessary shall be done by the Station House Officer within a period of one month from the date of receipt of a copy of this 9 W.P.(C).No.7271/22 judgment. Writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.7271/22 10 ## **APPENDIX OF WP(C) 7271/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTERED WILL DATED 9.12.1983. - Exhibit P2 TRUE COPY OF THE JUDGMENT OS NO.524/2005 1ST ADDITIONAL SUB COURT, ERNAKULAM DATED 5.1.2008. - Exhibit P3 THE TRUE COPY OF THE JUDGMENT PASSED BY HON'BLE HIGH COURT OF KERALA, IN RFA NO.101 OF 2008 DATED 3.12.2014. - Exhibit P4 THE TRUE COPY OF THE KACHIT AND THE INVENTORY LIST PREPARED BY THE AMIN IN EXECUTION PETITION NO. 439 OF 2008. Exhibit P5 THE TRUE COPY OF THE POLICE COMPLAINT FILED DATED 16.12.2021. - Exhibit P6 TRUE COPY OF THE ACKNOWLEDGEMENT FOR FILING EXHIBIT P5 DATED 16.12.2021. - RESPONDENT EXHIBITS - Exhibit R4(a) - TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE VOTERS LIST FOR LEGISLATIVE CONSTITUENCY OF ERNAKULAM FOR 2016 - Exhibit R4(b) TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE VOTERS LIST FOR LEGISLATIVE CONSTITUENCY OF ERNAKULAM FOR 2019 Exhibit R4(c) TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE VOTERS LIST FOR WARD NO.66, ERNAKULAM CENTRAL OF THE CORPORATION OF COCHIN FOR 2020 W.P.(C).No.7271/22 11 Exhibit R4(d) TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE VOTERS LIST FOR LEGISLATIVE CONSTITUENCY OF ERNAKULAM FOR 2022, PREPARED IN 2021,2021 Exhibit R4(e) TRUE PHOTOCOPY OF CERTIFICATE DATED 24.3.2022 ISSUED BY THE ASSISTANT ENGINEER, LSGD, CORPORATION OF COCHIN True copy PS to Judge