Parvathy and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939** **WP(C).No. 19131 of 2016(N) --------------------------** **PETITIONER(S):** - **-------------** - **1 PARVATHY,** **W/O KARUPPUTTY VADAKKEPURACKAL VEEDU, PONMUNDAM AMSOM DESOM, PONMUNDAM P.O, TIRUR.** ## **2 SUBRAMANIAN,** **S/O KARUPPUTTY VADAKKEPURACKAL VEEDU, PONMUNDAM AMSOM DESOM, PONMUNDAM P.O, TIRUR.** - **3 PRAKASH BABU,** - **S/O KARUPPUTTY VADAKKEPURACKAL VEEDU, PONMUNDAM AMSOM DESOM, PONMUNDAM P.O, TIRUR.** ## **4 VASUDEVAN,** **S/O KARUPPUTTY VADAKKEPURACKAL VEEDU, PONMUNDAM AMSOM DESOM, PONMUNDAM P.O, TIRUR.** **BY ADV.SRI.A.KRISHNAN** ## **RESPONDENT(S):** - **-------------** **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY, HOME AFFAIRS, THIRUVANANTHAPURAM - 695 001.** **2. THE DISTRICT POLICE CHIEF, MALAPPURAM DISTRICT - 676 505.** **3. THE SUB INSPECTOR OF POLICE,** - **KALPAKANCHERRY POLICE STATION, MALAPPURAM DISTRICT - 676 551.** **4. RAJESH, S/O KRISHNANKUTTY, VADAKKEPPURACKAL VEEDU, PONMUNDAM POST, CHELAVIL DESAM, TIRUR TALUK, MALAPPURAM DISTRICT - 676 106.** **WP(C).No. 19131 of 2016 (N) ---------------------------** **2** **5. JAYA, D/O KRISHNANKUTTY, VADAKKEPPURACKAL VEEDU, PONMUNDAM POST, CHELAVIL DESAM, TIRUR TALUK, MALAPPURAM DISTRICT - 676 106.** **6. SAROJINI, W/O KRISHNANKUTTY, VADAKKEPPURACKAL VEEDU, PONMUNDAM POST, CHELAVIL DESAM, TIRUR TALUK, MALAPPURAM DISTRICT - 676 106.** **R1-R3 BY SR.GOVERNMENT PLEADER SRI.P.P.THAJUDHEEN R4-R6 BY ADV. SRI.C.M.MOHAMMED IQUABAL R4-R6 BY ADV. SRI.ANILKUMAR V. (VAZHARAMBIL) R4-R6 BY ADV. SMT.A.P.RUFAIJA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 19131 of 2016 (N) ---------------------------** ## **APPENDIX** ## **----------** ## **PETITIONER(S)' EXHIBITS:** ## **-----------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S 159 OF 2013 OF THE MUNSIFF COURT, TIRUR DTED 23-05-2013 EXHIBIT P2 TRUE COPY OF I.A NO 600/13 IN O.S 159 OF 2013 OF MUNSIFF COURT, TIRUR, DATED 23-05-2013 EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED IN EXHIBIT P1, DATED 04-09-2013 EXHIBIT P4 TRUE COPY OF THE COMMISSION REPORT DATED 14-08-2013 IN I.A NO 601/2013 EXHIBIT P4(a) TRUE COPY OF THE SKETCH ATTACHED TO EXHIBIT P4 EXHIBIT P4(b) TRUE COPY OF THE COMMISSIONER REPORT DATED AUGUST 2015, IN I.A NO 519/2013. EXHIBIT P4(c) TRUE COPY OF THE SKETCH ATTACHED TO EXHIBIT P4(b) EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN O.S NO 159 OF 2013 OF THE MUNSIFF COURT, TIRUR, DATED 25-01-2016 EXHIBIT P5(a) TRUE COPY OF THE DECREE IN O.S NO 159 OF 2013 OF THE MUNSIFF COURT, TIRUR, DATED 25-01-2016 EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 3RD RESPONDENT DATED 11-03-2016.** **RESPONDENT(S)' EXHIBITS: ----------------------EXHIBIT R4(a) TRUE COPY OF THE MEMORANDUM OF APPEAL IN A.S. 35/16 DATED 16-03-2016.** **/TRUE COPY/** **PA TO JUDGE** ## _**dkr**_ ## K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------W.P.(C) No. 19131 of 2016 ------------------------------------------Dated this the 2[nd] day of March, 2018 ## J U D G M E N T ## Ashok Menon, J. The petitioners are before us seeking to enforce the decree of the Munsiff's Court, Tirur, with police protection. 2. The petitioners had filed O.S.No.159/2013 before the Munsiff's Court, Tirur for a declaration of easement right by prescription over a pathway to reach their property and for consequential perpetual injunction of restraining the defendants therein from reducing the width of the disputed pathway or causing any obstruction to the use of the pathway. Exts.P1 and P2 are the copy of the plaint and the petition in that suit. Ext.P3 is the written statement submitted by the defendants. The Commissioner deputed in that suit, filed a report and sketch, which forms part of the judgment. The judgment and decree of the Munsiff's Court dated 25-01-2016 are Exts.P5 series. The suit was decreed in _WP(C) 19131/2016_ 2 favour of the petitioner declaring his prescriptive right over the disputed pathway described in the sketch filed by the Commissioner and the defendants therein, who are the party respondents 4 to 6 herein, were restrained by means of perpetual injunction from causing any obstruction to the use of the pathway by the plaintiffs for ingress and egress to their property. It is the contention of the petitioners that despite favourable decree obtained by them, the party respondents continue to obstruct the use of the pathway by the petitioners. They are depositing waste in the pathway and also reducing its width. The petitioners filed Ext.P6 complaint before the 3[rd] respondent. But no action has been taken so far. Therefore, the petitioners seek interference of this Court. 3. The 4[th] respondent appeared and filed a counteraffidavit admitting that there is a decree in favour of the petitioners. Against Ext.P5, an appeal has been preferred before the Sub Court, Tirur as A.S.No.34/2016, the memorandum of which is Ext.R4(a). It is submitted that even though the decree of the trial court has been challenged in appeal, the petitioners are in haste to get the decree executed through interference of the police authorities and without _WP(C) 19131/2016_ 3 resorting to the execution proceedings in the trial court. The allegation that the party respondents have violated the decree, is denied by him. 4. Heard the learned Senior Government Pleader appearing for respondents 1 to 3 and the learned Counsel for the petitioners and the Counsel for the 4[th] respondent. Documents perused. 5. The learned Counsel for the petitioners argues that in view of the favourable decree obtained by them, the party respondents cannot insist that the petitioners should again approach the civil court for execution of the decree and continue to violate the decree. He relies on the decision of this Court reported in Illyas T.S. v. State of Kerala, 2014 KHC 647 . In the above cited decision, the defendants in the suit were evicted. The decree holder had filed an application for execution, the judgment debtor had obstructed the same. The obstruction was removed and the delivery was effected by the execution court. But consequent to the delivery, the judgment debtor once again trespassed into the property and in the light of that act of the judgment debtor, this Court held that if the defendants again trespassed into the property, the police is _WP(C) 19131/2016_ 4 bound to interfere into the matter and restore possession of the property. The trespass was in gross violation of the decree passed and the persons who do not obeying the judgment of a civil court cannot insist that the petitioners should again approach the civil court for recovery of possession of his property. In such circumstances, the Writ Petition was allowed affording police protection to restore the possession of the building, which was encroached a second time, after the delivery. 6. The instant case can be distinguished on facts. Herein the petitioners have obtained a decree establishing their right of way by way of prescription. An injunction has been obtained against the defendants. The defendants are violating that order of injunction and continue to obstruct the decree holder. The decree holder in such circumstances, can approach the civil court for execution of the decree and take appropriate action against the defaulters. The respondents would state that they have filed an appeal, but it is not stated whether any stay has been obtained to the execution of the decree. We have to assume that there is no stay and nothing prevents the petitioners from executing the _WP(C) 19131/2016_ 5 decree. Without having resorting to the equally efficacious remedy of executing the decree of the civil court, the petitioners cannot take a short cut to approach the High Court directly and seek a direction to involve the police for executing the decree of the Munsiff's Court. We are therefore, not inclined to issue any positive direction to the police for protection. However, in case, there is any complaint received by the police authorities, revealing any cognizable offence, appropriate action shall be taken in accordance with law. With these observations, the Writ Petition is closed. No costs. K.VINOD CHANDRAN Judge ASHOK MENON Judge dkr