Padmavathi.T v. Superintendent of Police Kannur & Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE ACTING CHIEF JUSTICE MR. MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR.JUSTICE K.T.SANKARAN WEDNESDAY, THE 17TH DAY OF AUGUST 2016/26TH SRAVANA, 1938 WP(C).No. 20855 of 2016 (F) ---------------------------- PETITIONER : - ------------------ PADMAVATHI.T AGED 70 YEARS, D/O. (LATE) LAKSHMI, ELAYAVOOR AMSOM, MUNDAYAD DESOM P.O.MUNDAYAD, KANNUR DISTRICT. BY ADVS.SRI.P.U.SHAILAJAN SRI.M.SURESH KUMAR SMT.D.N.NISHANI RESPONDENTS : ----------------------- 1. SUPERINTENDENT OF POLICE KANNUR, KANNUR - 670 001. 2. STATION HOUSE OFFICER, KANNUR TOWN POLICE STATION, KANNUR, KANNUR DISTRICT 670 001. 3. C.K.LAKSHMI, W/O.T.NARAYANAN, THANDARATH HOUSE, NEAR S.N. COLLEGE, P.O. THOTTADA, KANNUR -670 007. 4. T.K. PREETHA, D/O. T. NARAYANAN, THANDARATH HOUSE, NEAR S.N. COLLEGE, P.O. THOTTADA, KANNUR -670 007. 5. T.K. REENA, D/O.T. NARAYANAN, THANDARATH HOUSE, NEAR S.N. COLLEGE, P.O. THOTTADA, KANNUR -670 007. 6. LAKSHMANAN T. S/O. KALYANI, THANDARATH HOUSE, NEAR S.N. COLLEGE, P.O. THOTTADA, KANNUR -670 007. W.P.(C) No.20855/2016 7. RADHA, D/O. KALLYANI, NEAR SREE NARAYANA COLLEGE, P.O. THOTTADA, KANNUR DISTRICT 670 007. R1-R2 BY ADV. STATE ATTORNEY R3-R7 BY ADV. SRI.K.SANDESH RAJA R3-R7 BY ADV. SRI.HARIDAS THAIKKANDY R BY SR.GOVERNMENT PLEADER P.P.THAJUDHEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20855 of 2016 (F) ---------------------------- ## APPENDIX PETITIONER'S EXHIBITS : -------------------------------- - EXT.P1 : COPY OF THE DECREE IN O.S 154/1986 DATED 28/02/1990 ON THE FILE OF MUNSIFF'S COURT, KANNUR - EXT.P2 : COPY OF THE SKETCH PLAN SUBMITTED BY THE COMMISSIONER AND REFERRED IN EXHIBIT-P1 - EXT.P3 : COPY OF THE DELIVERY REPORT IN E.P.NO.339/1990 ON THE FILE OF MUNSIFF'S COURT, KANNUR - EXT.P4 : COPY OF THE RECEIPT IN E.P.NO.339/1990 ON THE FILE OF THE MUNSIFF'S COURT, KANNUR - EXT.P5 : COPY OF THE COMPLAINT DATED 12/03/2016 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ## ADDITIONAL DOCUMENTS: EXT.P6: COPY OF JUDGMENT IN O.S.NO.154/86 DATED 28.2.1990 PASSED BY THE ADDITIONAL MUNSIFF'S COURT, KANNUR. - EXT.P7: COPY OF JUDGMENT IN S.A.NO.488/1992 PASSED BY THE HON'BLE HIGH COURT DATED 20.3.2003. RESPONDENTS' EXHIBITS : ------------------------------------ EXT.R3(1) : COPY OF PARTITION DEED NO.1523 OF 1980 OF KANNUR SRO. //TRUE COPY// P.A. TO JUDGE ## **MOHAN M. SHANTANAGOUDAR, AG. C.J. &** **K.T.SANKARAN, J.** ----------------------------------------- W.P.(C) No.20855 of 2016 ----------------------------------------Dated this the 17[th] day of August, 2016 ## _**JUDGMENT**_ ## _**K.T.Sankaran, J.**_ The relief prayed for in this Writ Petition is to issue a writ of mandamus or any other appropriate writ or order directing respondents 1 and 2 to give adequate and sufficient police protection to the petitioner to construct compound wall on the eastern and northern sides of the property in terms of Exhibit P1 decree. There was a property dispute between the petitioner and others on the one hand and the party respondents on the other. According to the petitioner, the property belonged in jenmam to the tarward of Krishnan. In the tarward partition, the property in question was allotted to Krishnan. After the death W.P.(C) No.20855/2016 F 2 of Krishnan, his rights devolved on his sister and brother (Lakshmi and Kunhiraman respectively). Both of them passed away. According to the petitioner, herself and seven others are the legal representatives of Lakshmi and Kunhiraman. O.S.No.154 of 1986 was filed by Lakshmi and Kunhiraman against respondent Nos.6 and 7, Narayanan (husband of respondent No.3 and father of respondent Nos.4 and 5) as well as one Sathi, for declaration of title and recovery of possession in respect of an extent of 15 cents of land in R.S.No.19/1 of Elayavoor amsom. It is submitted that Lakshmi died during the pendency of appeal arising from the suit and the petitioner was impleaded as additional respondent in the appeal. The suit was decreed as per Exhibit P1 decree dated 28.2.1990. Exhibit P6 is the judgment in O.S.No.154 of 1986. The Commissioner submitted Exhibit P2 sketch in the suit. Against the judgment and decree in O.S.No.154 of 1986, Sathi, the fourth defendant W.P.(C) No.20855/2016 F 3 in the suit, filed A.S.No.70 of 1990 on the file of the Sub Court, Thalassery. The appellate court dismissed the appeal. Sathi filed S.A.No.488 of 1992 before this Court challenging the judgment and decree of the lower appellate court. This Court dismissed S.A.No.488 of 1992 as per Exhibit P7 judgment dated 20[th] March, 2003. The plaint schedule property was delivered to the decree holders. 2. The grievance of the petitioner is that in spite of the decree passed by the civil court, which was confirmed in Appeal and Second Appeal, the petitioner was prevented by the party respondents from constructing a compound wall on the eastern and northern sides of her property. It is stated in the Writ Petition that the property of S.N.Trust is situated on the western side of the property in dispute. The defendants in the suit, under whom the party respondents claim, put forward a contention before the trial court that they are entitled to an W.P.(C) No.20855/2016 F 4 extent of 39.5 cents of land. The plaintiffs in the suit contended that the defendants are entitled to only an extent of 23 cents of land and that property was claimed by them as legal representatives of the lessee Kalliani. The lease was granted in favour of Kalliani by Krishnan, the predecessor interest of the petitioner. The civil Court conclusively held that the property on the eastern side of the petitioner's property (plaint schedule property) belongs to the defendants in the suit and the extent of the same is only 23 cents. The civil court also found that the extent of the property in the possession of the plaintiffs (under whom the petitioner claims), is 15 cents of land and it was identified by the Commissioner. 3. The party respondents, in the counter affidavit, have put forward the very same contentions which were put forward by them in the suit and which were rejected by the trial court, the appellate court and the High Court. They contend that the W.P.(C) No.20855/2016 F 5 petitioner has to approach the civil court again to fix the actual boundary. Even a false contention that the party respondents do not share a boundary with the petitioner is also seen raised in the counter affidavit. That contention is falsified by Exhibits P6 and P7 judgments in the suit as well as in the Second Appeal. Thus it can be seen that the contentions put forward in the counter affidavit contain incorrect averments and contain contentions which were rejected by the trial court, the appellate court and the High Court in the earlier litigation referred to above. 4. Now the question remains as to whether the petitioner should be provided with an order for police protection to construct a compound wall on the eastern side and northern side of her property. It is well settled that the police cannot identify the property, demarcate the boundary or fix the boundary. It is also well settled in I **llyas T.A. v. State of** W.P.(C) No.20855/2016 F 6 **Kerala and others : (2014 KHC 647)** that when a suit for recovery of possession was decreed and the decree was executed and delivery of the property was given to the plaintiff, persons who are not obeying the judgment of the civil court cannot insist that the plaintiff should again approach the civil court for recovery of possession of the property. The contentions put forward in Illyas's case that a Writ Petition for police protection is not maintainable was negatived. 5. In the facts and circumstances and in the light of the Division Bench decision in Illyas.T.A. v. State of Kerala and others : (2014 KHC 647), we are of the view that the rights of the petitioner are to be protected and she should be allowed to construct a compound wall on the eastern and northern sides of her property. The property is identified as per Exhibit P2 sketch. On the northern and eastern sides of the property marked in Exhibit P2 sketch, the petitioner would be entitled to W.P.(C) No.20855/2016 F 7 construct the compound wall. If the Commissioner who prepared Exhibit P2 sketch is available, his presence shall also be secured while constructing the compound wall. 5. Accordingly, the Writ Petition is allowed and the following directions are issued : - (i) Respondents 1 and 2 shall provide adequate and effective police protection to the petitioner to construct a compound wall on the eastern side and northern side of her property which was involved in O.S.No.154 of 1986 on the file of the Munsiff's Court, Kannur and which property was identified by the Commissioner and shown in Exhibit P2 sketch. - (ii) If the Commissioner who prepared Exhibit P2 sketch is available, the petitioner as well as respondents 1 and 2 shall see that his presence is secured while constructing the compound wall or fixing the line W.P.(C) No.20855/2016 F 8 where the compound wall is to be constructed. (iii) If the party respondents or their henchmen cause any obstruction to the construction of the compound wall, respondents 1 and 2 shall remove that obstruction to enable the petitioner to construct a compound wall as aforesaid. **Mohan M. Shantanagoudar Acting Chief Justice** **K.T.Sankaran** **Judge** csl /17/8